in Re Jason Omar Moreno ( 2021 )

NUMBER 13-21-00226-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 Chief Justice Contreras and Justices Benavides and Silva
Memorandum Opinion by Chief Justice Contreras1
Jason Omar Moreno, proceeding pro se, filed a pleading in the above-referenced
cause in which he requests that we direct the trial court and district clerk to provide him
with the name of the court reporter who transcribed hearings held on August 20, 1996,
and September 9, 1996, in trial court cause number CR-2486-94-A in the 92nd District
Court of Hidalgo County, Texas. Because Moreno’s pleading does not reference an order
or judgment subject to appeal and he is, in essence, asking us to command public officers
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.”); id. R. 47.4 (distinguishing opinions and memorandum opinions).
to perform an act, we construe his pleading as a petition for writ of mandamus. See
generally TEX. R. APP. P. 25.1(a), (d); In re Castle Tex. Prod. Ltd. P’ship, 189 S.W.3d 400,
403 (Tex. App.—Tyler 2006, orig. proceeding) (“The function of the writ of mandamus is
to compel action by those who by virtue of their official or quasi-official positions are
charged with a positive duty to act.”) (citing Boston v. Garrison, 256 S.W.2d 67, 70 (Tex.
1953)); see also In re Guthrie, No. 13-20-00134-CR, 2020 WL 1181261, at *1 (Tex.
App.—Corpus Christi–Edinburg Mar. 12, 2020, orig. proceeding) (mem. op., not
designated for publication). We note that Moreno has previously filed a direct appeal and
a separate original proceeding from the underlying cause. See Moreno v. State, 987
S.W.2d 195, 198 (Tex. App.–Corpus Christi–Edinburg 1999, pet. ref’d) (affirming relator’s
conviction for aggravated kidnapping, aggravated sexual assault, and aggravated
robbery); In re Moreno, No. 13-16-00262-CR, 2016 WL 2967990, at *1 (Tex. App.—
Corpus Christi–Edinburg May 13, 2016, orig. proceeding) (mem. op.) (denying relator’s
petition for writ of mandamus seeking to compel the trial court to conduct a hearing on
relator’s motion for post-conviction DNA testing and motion for appointment of counsel).
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.
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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) (per curiam) (“Even a pro se applicant for a writ of mandamus
must show himself entitled to the extraordinary relief he seeks.”); see generally TEX. R.
APP. P. 52.3; Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App. 2011) (orig.
proceeding) (Alcala, J. concurring); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992)
(orig. proceeding).
Article V, Section 6 of the Texas Constitution delineates the appellate jurisdiction
of the courts of appeals, and states that the courts of appeals “shall have such other
jurisdiction, original and appellate, as may be prescribed by law.” TEX. CONST. art. V, §
6(a); see In re Bayview Loan Servicing, LLC, 532 S.W.3d 510, 511 (Tex. App.—
Texarkana 2017, orig. proceeding). This Court’s original jurisdiction is governed by
§ 22.221 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 22.221; see also
In re Cook, 394 S.W.3d 668, 671 (Tex. App.—Tyler 2012, orig. proceeding). In pertinent
part, this section provides that we may issue writs of mandamus against district and
county judges within our district and “all other writs necessary to enforce the jurisdiction
of the court.” See TEX. GOV’T CODE ANN. § 22.221(a), (b). Thus, we lack power to review
the actions of a district clerk by mandamus “absent a showing that the district clerk’s
actions have interfered with our jurisdiction.” In re State, 599 S.W.3d 577, 593 (Tex.
App.—El Paso 2020, orig. proceeding); see In re Shugart, 528 S.W.3d 794, 796 (Tex.
App.—Texarkana 2017, orig. proceeding) (stating that “this Court lacks jurisdiction over
district clerks, unless necessary to enforce our jurisdiction”); In re Potts, 357 S.W.3d 766,
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768 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding) (stating that the court lacked
mandamus jurisdiction against the district clerk). Here, the relator has neither pleaded nor
shown that mandamus is necessary to enforce this Court’s jurisdiction. See TEX. GOV’T
CODE ANN. § 22.221(a).
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has not met his burden to obtain relief
as against the trial judge and that we lack jurisdiction over relator’s claims against the
district clerk. Accordingly, we deny the petition for writ of mandamus in part and dismiss
it in part for want of jurisdiction. See In re Harris, 491 S.W.3d at 334; In re McCann, 422
S.W.3d at 704.
DORI CONTRERAS
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
30th day of July, 2021.
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