in Re Rene Rivas Jr.

NUMBER 13-19-00560-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE RENE RIVAS JR.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Tijerina
Memorandum Opinion by Justice Hinojosa 1
On November 4, 2019, relator Rene Rivas Jr., proceeding pro se, filed a petition
for writ of mandamus through which he seeks to compel the trial court to perform DNA
testing on biological material. See TEX. CODE CRIM. PROC. ANN. art. 64.01. 2 Relator
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); see also id. R. 47.4 (distinguishing opinions and memorandum opinions).
2 Relator has previously raised this issue through both appeal and original proceeding. See, e.g.,
Rivas v. State, No. 13-16-00414-CR, 2017 WL 1228914, at *1 (Tex. App.—Corpus Christi–Edinburg Mar.
2, 2017, pet. ref'd) (mem. op., not designated for publication); In re Rivas, No. 13-16-00320-CR, 2016 WL
3911247, at *1 (Tex. App.—Corpus Christi July 11, 2016, orig. proceeding) (mem. op., per curiam).
contends that the failure to perform testing on various items, including a black dress, knife,
and bedsheets, resulted in his wrongful conviction for sexual assault.
To be entitled to mandamus relief, the relator must establish both that he has no
adequate remedy at law to redress his alleged harm, and that what he seeks to compel
is a purely ministerial act not involving a discretionary or judicial decision. In re Harris,
491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422
S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet
both requirements, then the petition for writ of mandamus should be denied. State ex rel.
Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007).
It is the relator’s burden to properly request and show entitlement to mandamus
relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig.
proceeding) (“Even a pro se applicant for a writ of mandamus must show himself entitled
to the extraordinary relief he seeks.”). In addition to other requirements, the relator must
include a statement of facts supported by citations to “competent evidence included in the
appendix or record” and must also provide “a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the appendix or record.”
See generally TEX. R. APP. P. 52.3. As the party seeking relief, the relator has the burden
of providing the Court with a sufficient mandamus record to establish his right to a writ of
mandamus. Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.
proceeding) (Alcala, J. concurring); Walker, 827 S.W.2d at 837; see TEX. R. APP. P.
52.3(k) (specifying the required contents for the appendix); R. 52.7(a) (specifying the
required contents for the record).
2
In this case, the relator has failed to provide a sufficient appendix or record in
support of his petition for writ of mandamus and he has therefore failed to meet his burden
to obtain relief. See Walker, 827 S.W.2d at 837; see generally TEX. R. APP. P. 52.3.
Moreover, while a trial court has a ministerial duty to rule upon a motion that is properly
and timely presented to it for a ruling, it generally has no ministerial duty to rule a certain
way on that motion. In re State ex rel. Young v. Sixth Jud. Dist. Ct. of Appeals at
Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding); In re
Mendoza, 467 S.W.3d 76, 78 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding).
Accordingly, we deny the petition for writ of mandamus. See In re Harris, 491 S.W.3d at
334; In re McCann, 422 S.W.3d at 704.
LETICIA HINOJOSA
Delivered and filed the
4th day of November, 2019.
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