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Date: 03-04-2021
Case Style:
In re Valentin Torres Alvarez
Case Number: 13-21-00028-CR
Judge: NORA L. LONGORIA
Court: COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
Plaintiff's Attorney: Hon. Luis V. Saenz
Defendant's Attorney:
OR
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Description:
Corpus Christi and Edinburg, Texas - Relator Valentin Torres Alvarez a/k/a Valentin Torres Alverez, proceeding pro se, filed a petition for writ of mandamus in this cause through which he contends that the trial.court has violated its ministerial duty to provide relator with the appellate record pertaining to his conviction.
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.
[1st Dist.] 1999, pet. denied) (explaining that a person who is not a licensed attorney may not represent
other persons in legal matters).
3 This original proceeding arises from trial court cause number 2017-DCR-2121 in the 103rd District
Court of Cameron County, Texas. Relator has previously filed other appeals and original proceedings from
this same cause number. See In re Alvarez, No. 13-20-00525-CR, 2020 WL 7233625, at *1 (Tex. App.—
Corpus Christi–Edinburg Dec. 8, 2020, orig. proceeding) (mem. op., not designated for publication); In re
Alvarez, No. 13-20-00462-CR, 2020 WL 6588605, at *1 (Tex. App.—Corpus Christi–Edinburg Nov. 10,
2020, orig. proceeding) (mem. op., not designated for publication); In re Alvarez, No. 13-20-00259-CR,
2020 WL 5052771, at *1 (Tex. App.—Corpus Christi–Edinburg July 15, 2020, orig. proceeding) (mem. op.,
not designated for publication); Alvarez v. State, No. 13-20-00260-CR, 2020 WL 5051509, at *1 (Tex.
App.—Corpus Christi–Edinburg July 15, 2020, no pet.) (mem. op., not designated for publication); Alvarez
v. State, No. 13-18-00410-CR, 2018 WL 4140676, at *1 (Tex. App.—Corpus Christi–Edinburg Aug. 30,
2018, no pet.) (mem. op., not designated for publication).
4 Only the Court of Criminal Appeals possesses the authority to grant relief in a post-conviction
habeas corpus proceeding where there is a final felony conviction. Padieu v. Court of Appeals of Tx., Fifth
Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013) (orig. proceeding) (per curiam). However, in this case,
the relator has not filed an application for a writ of habeas corpus. Instead, he is asking the trial court to
provide him with certain records for the purpose of filing such an application. The Texas Court of Criminal
Appeals has held: “we perceive no reason why our exclusive Article 11.07 jurisdiction divests an appellate
court of jurisdiction to decide the merits of a mandamus petition alleging that a district judge is not ruling on
a motion when the relator has no Article 11.07 application pending.” Id. at 117-18 (“Although the records
he seeks may be intended for preparation of an eventual habeas corpus application, the issue here is simply
whether the trial judge has a duty to act upon his pending motion.”). Therefore, this Court has the authority
to consider the merits of the relator’s petition under the circumstances presented here. See id. at 118 (“when
there is no pending application for habeas corpus filed under Article 11.07 of the Code of Criminal
Procedure, the appellate court is not without jurisdiction to rule on mandamus petitions relating to a motion
requesting access to material that could be used in a future habeas application”).
3
Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007). A trial court has a ministerial duty to rule on a properly filed and timely
presented motion. See id. To be entitled to mandamus relief for a trial court’s failure to
rule on a motion, however, the record must show both that the motion was filed and
brought to the attention of the judge for a ruling. See In re Foster, 503 S.W.3d 606, 607
(Tex. App.—Houston [14th Dist.] 2016, orig. proceeding) (per curiam); In re Layton, 257
S.W.3d 794, 795 (Tex. App.—Amarillo 2008, orig. proceeding). Merely filing a document
with the district clerk does not indicate that the trial court is aware of it and we do not
impute the clerk’s knowledge of the filing to the trial court. See In re Hearn, 137 S.W.3d
681, 685 (Tex. App.—San Antonio 2004, orig. proceeding).
It is the relator’s burden to properly request and show entitlement to mandamus
relief. See 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). In addition to other requirements, the relator must include a
statement of facts in the petition that is 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. 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); id. R. 52.7(a) (specifying the required contents
for the record).
4
An indigent criminal defendant is not entitled to obtain a free record to assist in
preparation of a petition for writ of habeas corpus absent a showing that the habeas
corpus action is not frivolous and there is a specific need for the record sought. Nabelek
v. Bradford, 228 S.W.3d 715, 719 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(stating that a habeas petitioner “has no constitutionally protected right to that information
as a matter of due process”); Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.—Houston
[1st Dist.] 1993, no pet.) (“An indigent criminal defendant is not . . . entitled—either as a
matter of equal protection, or of due process—to a free transcription of prior proceedings
for use in pursuing post-conviction habeas corpus relief.”); see also In re Olvera, No. 14-
18-00786-CR, 2018 WL 4495062, at *1–2 (Tex. App.—Houston [14th Dist.] Sept. 20,
2018, orig. proceeding) (per curiam mem. op., not designated for publication). To obtain
a free record for use in a habeas proceeding, the relator must show that his or her habeas
application is not frivolous by making certain specified showings. See In re Coronado,
980 S.W.2d 691, 693 (Tex. App.—San Antonio 1998, orig. proceeding); Eubanks v.
Mullin, 909 S.W.2d 574, 576–77 (Tex. App.—Fort Worth 1995, orig. proceeding); see also
In re Olvera, 2018 WL 4495062, at *1–2.
The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that relator has failed to meet his burden to obtain
mandamus relief. Contrary to his assertions, relator has failed to provide a sufficient
record to show that his motion was filed, the motion was brought to the attention of the
trial court, relator requested a ruling, and the trial court refused or failed to issue a ruling
within a reasonable period. See In re Foster, 503 S.W.3d at 607; In re Layton, 257 S.W.3d
at 795; In re Hearn, 137 S.W.3d at 685. Furthermore, while we may, in appropriate
5
circumstances, direct the trial court to issue a ruling, we may not direct what that ruling
should be. See In re Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig.
proceeding) (“While we have jurisdiction to direct the trial court to make a decision, we
may not tell the court what that decision should be.”); In re Ramirez, 994 S.W.2d 682, 684
(Tex. App.—San Antonio 1998, orig. proceeding) (“However, while we have jurisdiction
to direct the trial court to proceed to judgment, we may not tell the court what judgment it
should enter.”).
Outcome: Accordingly, we deny the petition for writ of mandamus and all relief sought therein.
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