in Re Jason Omar Moreno ( 2016 )

NUMBER 13-16-00262-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE JASON OMAR MORENO
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion Per Curiam1
Relator, Jason Omar Moreno, proceeding pro se, filed a petition for writ of
mandamus in the above cause on May 10, 2016, asking this Court to compel the trial
court to conduct a hearing on relator’s motion for post-conviction DNA testing and motion
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. When granting relief, the court must hand down an opinion as in any other case.”); see
id. R. 47.4 (distinguishing opinions and memorandum opinions).
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for the appointment of counsel. Relator also contends that the trial court should issue a
ruling on his motion with findings of fact and conclusions of law.2
To be entitled to mandamus relief, a 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 ministerial act not involving a discretionary or judicial decision. State ex rel. Young
v. Sixth Judicial Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.
2007) (orig. proceeding). If the relator fails to meet both of these requirements, then the
petition for writ of mandamus should be denied. See id. 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. In this regard, it is clear that the relator must furnish an appendix or record
sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the
required contents for the appendix); R. 52.7(a) (specifying the required contents for the
record).
Chapter 64 of the Code of Criminal Procedure provides that a convicted person
may file in the trial court a motion for forensic DNA testing of evidence that has a
reasonable likelihood of containing biological material. See TEX. CODE CRIM. PROC. ANN.
2 This original proceeding arises from trial court cause number CR-2486-94-A in the 92nd District
Court of Hidalgo County. Relator’s conviction in that cause has already been addressed by direct appeal.
See Moreno v. State, 987 S.W.2d 195, 198 (Tex. App.—Corpus Christi 1999, pet. ref'd).
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art. 64.01(a-1) (West, Westlaw through 2015 R.S.). A person is entitled to counsel during
a proceeding for forensic DNA testing. Id. art. 64.01(c). Moreover, a trial court is required
to consider and rule on a motion within a reasonable time. In re Bonds, 57 S.W.3d 456,
457 (Tex. App.—San Antonio 2001, orig. proceeding). When a motion is filed and
pending before a trial court, the act of giving consideration to and ruling upon that motion
is a ministerial act, and mandamus will issue to compel the trial judge to act. See id.
The Court, having examined and fully considered the petition for writ of mandamus,
is of the opinion that the relator has not met his burden to obtain relief. The petition for
writ of mandamus fails to comply with the Texas Rules of Appellate Procedure because
relator has not included any supporting documentation in the form of an appendix or
record. See generally TEX. R. APP. P. 52.3(k), 52.7(a). Without an appropriate record,
relator has not met his burden to establish that he has complied with the requirements of
article 64.01, or that the respondent 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 Apps., 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding).
Accordingly, the petition for writ of mandamus is DENIED.
PER CURIAM
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and the
13th day of May, 2016.
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