Opinion issued November 10, 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 1 6 - 00 85 7 - CR

——————————— IN RE JULIO FRAN CERVANTES - SEGURA , Relator
Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION Relator, Julio Fran Cervantes

- Segura , proceeding pro se and incarcerated, has filed a n “Application F or W rit of M andamus ” in this Court. Relator seek s to c ompel the respondent trial court judge to set aside his direct appeal proceedings until a hearing can be held on his pro se motion for new trial
. 1

1 The underlying case is The State of Texas v. Julio Fran Cervantes

- Segura , Cause No. 1445818, pending in the 180th District Court, Harris County, Texas, The Honorable Catherine Evans presiding. This Court recently denied relator’s pro se pre - trial criminal mandamus petition that arose from the same underlying trial court cause number 1445818
. See In re Julio Fran Cervantes

- Segura , No. 01

– 16

– 00647

–Generally, to be entitled to mandamus relief in a criminal matter, a relator

must establish both that he has no adequate remedy a t law to redress his alleged harm, and that what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision. See Bowen v. Carnes , 343 S.W.3d 805, 810 (Tex. Crim. App. 2011) (orig. proceed ing) (citation omitted). If the re lator fails to satisfy either aspect of this two

- part test, the relief should be denied. See id. Here, b ecause relator ’s petition refers to his direct appeal proceedings, he admits that he has already appealed at the time of filing this petition
. Although relator’s petition d id not refer to when he filed his notice of appeal, “[w]e may take judicial notice of our own records involving the same parties and subject matter.” Douglas v. Am. Title Co. , 196 S.W.3d 876, 877 n.1 (Tex. App.

— Houston [1st Di st.] 2006, no pet.) (citation omitted)
. Following a jury trial in which he was found guilty of aggravated robbery, the trial court assessed relator’s punishment at t en years’ confinement on September 23, 2016, in the underlying trial court cause number 14 45818
. On October 5, 2016, the district clerk assigned relator’s September 23, 2016 timely notice of appeal from t his judgment of conviction to this Court. See T EX . R. A PP . P. 2 6 .2(a)( 1 )
. T he trial court certified appellant’s right of appeal because this was not a plea

- bargain case and appellant ha s a right of appeal. See id.

CR , 2016 WL 6518673, at *1 (Tex. App.

— Houston [1st Dist.] Sept. 15, 2016, orig. proceeding) (per curiam) (mem. op., not designated for publication).25.2(a)(2)(B)
. The Clerk of this Court assigned relator’s direct appeal to appellate

cause number 01

– 16

– 00793

– CR, which remains pending. Thus, relator has an adequate appellat e remedy f o r the harms alleged in this petition
. Accordingly, w e construe the application as a petition for a writ of mandamus, but d eny the petition because relator has an adequate appellate remedy
. See T EX . R. A PP . P. 52.8(a) ; see also Bowen , 343 S.W.3d at 810. PER CURIAM Panel consists of Justices Key e s, Higley, and Lloyd
. Do not publish. T EX . R. A PP . P. 47.2(b).