Ex Parte Ruben Romero-Escandon v. . ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-00437-CR
EX PARTE Ruben ROMERO-ESCANDON
From the County Court, Kinney County, Texas
Trial Court No. 13170CR
Honorable Susan D. Reed, Judge Presiding
PER CURIAM
Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: July 3, 2024
DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS
DENIED
Appellant, Ruben Romero-Escandon, 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 Romero-Escandon’s request, and deny his mandamus petition.
BACKGROUND
Romero-Escandon, a noncitizen, was arrested under Operation Lone Star and charged with
the misdemeanor offense of criminal trespass. On March 3, 2023, Romero-Escandon 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 March 25, 2023, the trial court issued an order stating, “the
Application is denied without issuing writ.” Romero-Escandon timely filed a notice of appeal.
04-23-00437-CR
On April 5, 2024, we issued an order notifying Romero-Escandon 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.
Romero-Escandon failed to respond to our order. Romero-Escandon did, however, request
in his brief that, if we determine the trial court’s order is not appealable, 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
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shows that the trial court held any hearings related to Romero-Escandon’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 Romero-Escandon’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 Romero-Escandon’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, Romero-Escandon 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
Romero-Escandon’s appeal as a petition for writ of mandamus.
After considering the petition and the record, we deny Romero-Escandon’s request for
mandamus relief. See id. at *2–4.
CONCLUSION
Because the trial court’s denial of Romero-Escandon’s habeas application was not based
on the merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal
1
Romero-Escandon 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.” 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 Romero-Escandon’s habeas application in this case.
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for want of jurisdiction and, at Romero-Escandon’s request, treat his appeal as a petition for writ
of mandamus. Finally, we deny without prejudice Romero-Escandon’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
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