Ex Parte Carlos Fabian Bernal Vazquez v. . ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00428-CR
EX PARTE Carlos Fabian BERNAL VAZQUEZ
From the County Court, Kinney County, Texas
Trial Court No. 11176CR
Honorable Susan D. Reed, Judge Presiding
PER CURIAM
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: June 26, 2024
DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS
DENIED
Appellant, Carlos Fabian Bernal Vazquez, 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 Bernal Vazquez’s request, and deny his mandamus
petition.
BACKGROUND
Bernal Vazquez, a noncitizen, was arrested under Operation Lone Star and charged with
the misdemeanor offense of criminal trespass. On December 14, 2022, Bernal Vazquez filed an
application for writ of habeas corpus seeking dismissal of the criminal trespass charge because, he
alleged: (1) the State engaged in selective prosecution, in violation of his right to equal protection,
when it decided to charge him, and (2) the State facilitated his removal from the country, thereby
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violating his right to trial and his right to counsel. On March 26, 2023, the trial court issued an
order stating, “the Application is denied without issuing writ.” Bernal Vazquez timely filed a
notice of appeal.
On April 10, 2024, we issued an order notifying Bernal Vazquez 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.
Bernal Vazquez filed a response on April 11, 2024, in which he argues that the trial court’s
“order is appealable.” Bernal Vazquez 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
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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
shows that the trial court held any hearings related to Bernal Vazquez’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 Bernal Vazquez’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 Bernal Vazquez’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, Bernal Vazquez 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 Bernal
Vazquez’s appeal as a petition for writ of mandamus. 2
1
Bernal Vazquez 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, Bernal Vazquez argues in his April 11, 2024 response to our April 10, 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 Bernal Vazquez’s habeas application in this case.
2
Bernal Vazquez does not raise any issues in his appellate brief related to the claim in his application for pretrial writ
of habeas corpus that the State violated his right to trial and his right to counsel by facilitating his removal from the
country; his brief raises issues exclusively related to his equal protection claim. Moreover, Bernal Vazquez specifically
requests, in his brief, an order compelling the trial judge to issue a habeas writ for, and hold a hearing on the merits
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After considering the petition and the record, we deny Bernal Vazquez’s request for
mandamus relief. See id. at *2–4.
CONCLUSION
Because the trial court’s denial of Bernal Vazquez’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 Bernal Vazquez’s request, treat his appeal as a petition for writ of
mandamus. Finally, we deny without prejudice Bernal Vazquez’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
of, his selective-prosecution equal protection claim. We therefore construe his appeal as a petition for writ of
mandamus requesting mandamus relief solely pertaining to his selective-prosecution equal protection claim.
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