Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-23-00438-CR

EX PARTE Misael MORENO-MARTINEZ

From the County Court, Kinney County, Texas

Trial Court No. 13213CR

Honorable Susan D. Reed, Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice

Irene Rios, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: June 26, 2024

DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS 

DENIED

Appellant, Misael Moreno-Martinez, appeals from the denial of his pretrial application for 

writ of habeas corpus. We dismiss the appeal for want of jurisdiction, treat the appeal as a petition 

for writ of mandamus at Moreno-Martinez’s request, and deny his mandamus petition.

BACKGROUND

Moreno-Martinez, a noncitizen, was arrested under Operation Lone Star and charged with 

the misdemeanor offense of criminal trespass. On January 10, 2023, Moreno-Martinez filed an 

application for writ of habeas corpus seeking dismissal of the criminal trespass charge because, he 

alleged, the State engaged in selective prosecution, in violation of his right to equal protection, 

when it decided to charge him. On March 25, 2023, the trial court issued an order stating, “the 

Application is denied without issuing writ.” Moreno-Martinez timely filed a notice of appeal.
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On April 5, 2024, we issued an order notifying Moreno-Martinez that it appears we lack 

jurisdiction over this appeal and that we would dismiss this appeal unless he filed a response to 

our order showing that we have jurisdiction. 

Moreno-Martinez failed to respond to our order. Moreno-Martinez did, however, request 

in his brief that, if we determine the trial court’s order is not appealable, we treat his appeal as a 

petition for writ of mandamus. 

JURISDICTION

There is no right to an appeal when a trial court refuses to issue a habeas writ or dismisses 

or denies a habeas application without ruling on the merits of the applicant’s claims. See Ex parte 

Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008); Ex parte Molina Valencia, — S.W.3d 

—, No. 04-23-01044-CR, 2024 WL 1642923, at *1 (Tex. App.—San Antonio April 17, 2024, no 

pet. h.) (en banc). “Thus, where the record does not show that the trial court ruled on the merits of 

the application for writ of habeas corpus, we lack jurisdiction over the appeal.” Molina Valencia, 

2024 WL 1642923, at *1 (quoting Ex parte Blunston, No. 04-12-00657-CV, 2013 WL 3874471, 

at *1 (Tex. App.—San Antonio July 24, 2013, no pet.) (mem. op., not designated for publication); 

citing Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App.—Dallas 2001, pet. ref’d); Ex parte Miller, 

931 S.W.2d 724, 725 (Tex. App.—Austin 1996, no pet.)).

Here, the trial court did not issue a writ, and the trial court’s order simply states that “the 

Application is denied without issuing writ”—language we have previously held does not suggest 

a ruling on the merits. E.g., id. at *2 (citing In re Martinez-Jimenez, No. 04-23-00547-CR, 2023 

WL 7005866, at *2 (Tex. App.—San Antonio Oct. 25, 2023, orig. proceeding) (mem. op., not 

designated for publication); In re Lara Belmontes, 675 S.W.3d 113, 115 (Tex. App.—San Antonio 

2023, orig. proceeding)). Further, no reporter’s record has been filed, and nothing in the record 
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shows that the trial court held any hearings related to Moreno-Martinez’s habeas application or the 

merits thereof or otherwise considered any evidence related to the application.

Consequently, nothing in our review of the entire record reflects that the trial court 

considered or expressed an opinion on the merits of Moreno-Martinez’s habeas claims.1 See id.;

Ex parte Garcia, 683 S.W.3d 467, 473 (Tex. App.—San Antonio 2023, no pet.) (en banc). We 

therefore conclude that the trial court did not rule on the merits of Moreno-Martinez’s habeas 

application, and we lack jurisdiction to review his appeal. See Villanueva, 252 S.W.3d at 394; 

Molina Valencia, 2024 WL 1642923, at *2; Garcia, 683 S.W.3d at 473.

REQUEST TO TREAT HABEAS APPEAL AS A MANDAMUS PETITION

We may, in certain circumstances, treat an appeal as a petition for writ of mandamus, if 

specifically requested to do so by the appellant. See Molina Valencia, 2024 WL 1642923, at *2. 

As stated above, Moreno-Martinez specifically requests that we construe his appeal as a mandamus 

petition if we determine the trial court’s order is not appealable. We will therefore treat MorenoMartinez’s appeal as a petition for writ of mandamus. 

After considering the petition and the record, we deny Moreno-Martinez’s request for 

mandamus relief. See id. at *2–4.

CONCLUSION

Because the trial court’s denial of Moreno-Martinez’s habeas application was not based on 

the merits, we lack jurisdiction to review his habeas appeal. We therefore dismiss his appeal for 

1 Moreno-Martinez argues in his appellate brief that the trial judge held a hearing and heard testimony on an identical 

claim in another case in a different county and that the hearing in the other case “likely informed her denial in this 

case.” We, however, “may not consider factual assertions that are outside the record.” Whitehead v. State, 130 S.W.3d 

866, 872 (Tex. Crim. App. 2004); see Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996) (“It is a long 

standing principle that we cannot review contentions which depend upon factual assertions outside of the record.”). 

Nor may we consider evidence from the record of another case, unless we take judicial notice of our own records from 

“the same or related proceedings involving same or nearly same parties.” Turner v. State, 733 S.W.2d 218, 223 (Tex. 

Crim. App. 1987). Therefore, we may not consider the records from other cases in determining whether the trial court 

ruled on the merits of Moreno-Martinez’s habeas application in this case.
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want of jurisdiction and, at Moreno-Martinez’s request, treat his appeal as a petition for writ of 

mandamus. Finally, we deny without prejudice Moreno-Martinez’s petition for writ of mandamus. 

See TEX. R. APP. P. 52.8(a). Any pending motions are dismissed as moot. 

PER CURIAM

DO NOT PUBLISH