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Ex Parte Oscar Dominguez Espinosa v. . ( 2024 )


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  •                                Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-23-00459-CR
    EX PARTE Oscar Dominguez ESPINOSA
    From the County Court, Kinney County, Texas
    Trial Court No. 14219CR
    Honorable Susan D. Reed, Judge Presiding
    PER CURIAM
    Sitting:          Patricia O. Alvarez, Justice
    Irene Rios, Justice
    Liza A. Rodriguez, Justice
    Delivered and Filed: June 12, 2024
    DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS
    DENIED
    Appellant, Oscar Dominguez Espinosa, appeals from the denial of his pretrial application
    for writ of habeas corpus. We dismiss the appeal for want of jurisdiction, treat the appeal as a
    petition for writ of mandamus at Espinosa’s request, and deny his mandamus petition.
    BACKGROUND
    Espinosa, a noncitizen, was arrested under Operation Lone Star and charged with the
    misdemeanor offense of criminal trespass. On March 10, 2023, Espinosa filed an application for
    writ of habeas corpus seeking dismissal of the criminal trespass charge because, he alleged, the
    State engaged in selective prosecution, in violation of his right to equal protection, when it decided
    to charge him. On April 14, 2023, the trial court issued an order stating, “the Application is denied
    without issuing writ.” Espinosa timely filed a notice of appeal.
    04-23-00459-CR
    On April 5, 2024, we issued an order notifying Espinosa that it appears we lack jurisdiction
    over this appeal and that we would dismiss this appeal unless he filed a response to our order
    showing that we have jurisdiction.
    Espinosa filed a response on April 11, 2024, in which he argues that the trial court’s “order
    is appealable.” Espinosa also requests, in the event we determine that we lack jurisdiction over his
    appeal, that we treat his appeal as a petition for writ of mandamus.
    JURISDICTION
    There is no right to an appeal when a trial court refuses to issue a habeas writ or dismisses
    or denies a habeas application without ruling on the merits of the applicant’s claims. See Ex parte
    Villanueva, 
    252 S.W.3d 391
    , 394 (Tex. Crim. App. 2008); Ex parte Molina Valencia, — S.W.3d
    —, No. 04-23-01044-CR, 
    2024 WL 1642923
    , at *1 (Tex. App.—San Antonio April 17, 2024, no
    pet. h.) (en banc). “Thus, where the record does not show that the trial court ruled on the merits of
    the application for writ of habeas corpus, we lack jurisdiction over the appeal.” Molina Valencia,
    
    2024 WL 1642923
    , at *1 (quoting Ex parte Blunston, No. 04-12-00657-CV, 
    2013 WL 3874471
    ,
    at *1 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem. op., not designated for publication);
    citing Ex parte Bowers, 
    36 S.W.3d 926
    , 927 (Tex. App.—Dallas 2001, pet. ref’d); Ex parte Miller,
    
    931 S.W.2d 724
    , 725 (Tex. App.—Austin 1996, no pet.)).
    Here, the trial court did not issue a writ, and the trial court’s order simply states that “the
    Application is denied without issuing writ”—language we have previously held does not suggest
    a ruling on the merits. E.g., 
    id.
     at *2 (citing In re Martinez-Jimenez, No. 04-23-00547-CR, 
    2023 WL 7005866
    , at *2 (Tex. App.—San Antonio Oct. 25, 2023, orig. proceeding) (mem. op., not
    designated for publication); In re Lara Belmontes, 
    675 S.W.3d 113
    , 115 (Tex. App.—San Antonio
    2023, orig. proceeding)). Further, no reporter’s record has been filed, and nothing in the record
    -2-
    04-23-00459-CR
    shows that the trial court held any hearings related to Espinosa’s habeas application or the merits
    thereof or otherwise considered any evidence related to the application.
    Consequently, nothing in our review of the entire record reflects that the trial court
    considered or expressed an opinion on the merits of Espinosa’s habeas claims. 1 See id.; Ex parte
    Garcia, 
    683 S.W.3d 467
    , 473 (Tex. App.—San Antonio 2023, no pet.) (en banc). We therefore
    conclude that the trial court did not rule on the merits of Espinosa’s habeas application, and we
    lack jurisdiction to review his appeal. See Villanueva, 
    252 S.W.3d at 394
    ; Molina Valencia, 
    2024 WL 1642923
    , at *2; Garcia, 683 S.W.3d at 473.
    REQUEST TO TREAT HABEAS APPEAL AS A MANDAMUS PETITION
    We may, in certain circumstances, treat an appeal as a petition for writ of mandamus, if
    specifically requested to do so by the appellant. See Molina Valencia, 
    2024 WL 1642923
    , at *2.
    As stated above, Espinosa specifically requests that we construe his appeal as a mandamus petition
    if we determine the trial court’s order is not appealable. We will therefore treat Espinosa’s appeal
    as a petition for writ of mandamus.
    After considering the petition and the record, we deny Espinosa’s request for mandamus
    relief. See 
    id.
     at *2–4.
    1
    Espinosa argues in his appellate brief that the trial judge held a hearing and heard testimony on an identical claim in
    another case in a different county and that the hearing in the other case “likely informed her denial in this case.”
    Similarly, Espinosa argues in his April 11, 2024 response to our April 5, 2024 order that the trial court’s “order is
    appealable because . . . the lower court has previously considered the merits of the exact same claim dozens of times
    in other Operation Lone Star cases.” We, however, “may not consider factual assertions that are outside the record.”
    Whitehead v. State, 
    130 S.W.3d 866
    , 872 (Tex. Crim. App. 2004); see Janecka v. State, 
    937 S.W.2d 456
    , 476 (Tex.
    Crim. App. 1996) (“It is a long standing principle that we cannot review contentions which depend upon factual
    assertions outside of the record.”). Nor may we consider evidence from the record of another case, unless we take
    judicial notice of our own records from “the same or related proceedings involving same or nearly same parties.”
    Turner v. State, 
    733 S.W.2d 218
    , 223 (Tex. Crim. App. 1987). Therefore, we may not consider the records from other
    cases in determining whether the trial court ruled on the merits of Espinosa’s habeas application in this case.
    -3-
    04-23-00459-CR
    CONCLUSION
    Because the trial court’s denial of Espinosa’s habeas application was not based on the
    merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal for want
    of jurisdiction and, at Espinosa’s request, treat his appeal as a petition for writ of mandamus.
    Finally, we deny without prejudice Espinosa’s petition for writ of mandamus. See TEX. R. APP. P.
    52.8(a). Any pending motions are dismissed as moot.
    PER CURIAM
    DO NOT PUBLISH
    -4-
    

Document Info

Docket Number: 04-23-00459-CR

Filed Date: 6/12/2024

Precedential Status: Precedential

Modified Date: 6/25/2024