in Re Armando Tijerina ( 2011 )

NUMBER 13-11-00073-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE ARMANDO TIJERINA
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion Per Curiam1
Relator, Armando Tijerina, pro se, filed a petition for writ of mandamus in the
above cause on February 14, 2011, seeking to compel the trial court to issue rule on
relator’s “motion for reconsideration on additional evidence.” We deny the petition for
writ of mandamus for the reasons stated herein.
First, the petition for writ of mandamus fails to comply with the Texas Rules of
Appellate Procedure. See generally TEX. R. APP. P. 52.3. Specifically, for instance, the
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.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
petition lacks both appendix and record. See id. 52.3(k), 52.7. Second, relator has not
demonstrated that the respondent has expressly refused to rule on relator’s motion or
that an unreasonable amount of time has passed since the motion was filed. See In re
Dimas, 88 S.W.3d 349, 351 (Tex. App.–San Antonio 2002, orig. proceeding); In re
Chavez, 62 S.W.3d 225, 228 (Tex. App.–Amarillo 2001, orig. proceeding); Barnes v.
State, 832 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding);
accord O'Connor v. First Ct. of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig.
proceeding). Third, although the pleadings are unclear, it appears that relator may be
attempting to challenge the trial court’s actions pertaining to a post-conviction writ of
habeas corpus. Article 11.07 of the Code of Criminal Procedure provides the exclusive
means to challenge a final conviction. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 5
(Vernon Supp. 2010). Pursuant to that article, only the Texas Court of Criminal Appeals
has jurisdiction to grant post-conviction relief from a final felony conviction. See id.; In
re McAfee, 53 S.W.3d 715, 717-18 (Tex. App.–Houston [1st Dist.] 2001, orig.
proceeding).
The Court, having examined and fully considered the petition for writ of
mandamus, is of the opinion that relator has not shown himself entitled to the relief
sought, and the petition for writ of mandamus should be denied. See TEX. R. APP. P.
52.8. Accordingly, the petition for writ of mandamus is DENIED.
PER CURIAM
Do not publish.
See Tex. R. App. P. 47.2(b).
Delivered and filed the
15th day of February, 2011.