NUMBER 13-21-00247-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

IN RE RUDY MELCHOR

 

On Petition for Writ of Mandamus.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Silva

Memorandum Opinion by Chief Justice Contreras1

On August 9, 2021, relator Rudy Melchor filed a petition for writ of mandamus

asserting that the trial court erred in denying relator’s motion for continuance because 

“the State of Texas refused to disclose the credentials and expert opinions of the State of 

Texas’ designated medical and forensic expert witnesses sufficiently before the beginning 

of trial.” See TEX. CODE CRIM. PROC. ANN. art. 39.14 (detailing the scope of discovery 

available to a defendant in a criminal case). Relator also filed a first amended motion for 

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).
2

emergency stay through which he seeks to stay all trial court proceedings, including the 

trial of this matter which is currently set for August 16, 2021, pending resolution of this 

original proceeding. Finally, relator filed the reporter’s record from the hearing held on 

August 9, 2021, concerning relator’s motion for continuance.

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 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 Judicial 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. See State ex rel. Young, 236 S.W.3d at 210; In re Pena, 619 S.W.3d 837, 839 (Tex. 

App.—Houston [14th Dist.] 2021, orig. proceeding).

Under normal circumstances, “a trial court’s decision to refuse a continuance is 

reversible only for an abuse of discretion,” and thus, the court’s ruling on a motion for 

continuance is discretionary rather than ministerial. Matamoros v. State, 901 S.W.2d 470, 

478 (Tex. Crim. App. 1995) (en banc); Collier v. Poe, 732 S.W.2d 332, 346 (Tex. Crim.

App. 1987) (orig. proceeding) (en banc) (stating that “as a general rule the determination 

of whether to grant a continuance lies with the sound discretion of the court”). 

Nevertheless, such decisions may be ministerial when, for instance, a statute renders the 

granting of a motion for continuance to be a ministerial duty. See Collier, 732 S.W.2d at 
3

346 (discussing the legislative continuance embodied in TEX. CIV. PRAC. & REM. CODE 

ANN. § 30.003); Ojeda v. State, 916 S.W.2d 609, 610 (Tex. App.—San Antonio 1996, pet. 

ref’d) (stating that, if properly requested, “a legislative continuance is mandatory,” and the 

“trial court lacks any discretion in such a circumstance; instead, it serves a merely 

ministerial function”). Similarly, a trial court’s rulings involving discovery under article 

39.14 of the Texas Code of Criminal Procedure are typically discretionary. See Dickens 

v. Ct. of Apps. for the Second Supreme Jud. Dist. of Tex., 727 S.W.2d 542, 552 (Tex. 

Crim. App. 1987) (orig. proceeding) (concluding that “appeal is an adequate remedy in 

criminal cases for determination of the correctness of a trial judge’s pretrial discovery 

orders”). Nevertheless, again, this general rule is subject to exception when there is a 

“right” to the requested discovery. See Dickens, 727 S.W.2d at 551–52 (discussing the 

right to discovery regarding exculpatory or mitigating evidence); In re Hartman, 429 

S.W.3d 680, 682 (Tex. App.–Beaumont 2014, orig. proceeding) (stating that “decisions 

involving pretrial discovery of evidence that is exculpatory, mitigating, or privileged are 

not discretionary”); see also TEX. CODE CRIM. PROC. ANN. art. 39.14 (a), (h) (requiring the 

production of evidence “material to any matter involved in the action” and “any 

exculpatory, impeachment, or mitigating document, item, or information in the 

possession, custody, or control of the state that tends to negate the guilt of the defendant 

or would tend to reduce the punishment for the offense charged”); Watkins v. State, 619 

S.W.3d 265, 290 (Tex. Crim. App. 2021) (construing whether evidence is “material” under 

art. 39.14). 
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The Court, having examined and fully considered the petition for writ of mandamus, 

the limited record provided, and the applicable law, is of the opinion that the relator has 

not established his entitlement to the relief sought. Accordingly, we deny the petition for 

writ of mandamus and the first amended motion for emergency stay.

DORI CONTRERAS

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

12th day of August, 2021.