# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 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 w rit 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. B ACKGROUND Moreno - Martinez , a noncitizen, was arrested under Operation L one 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 selectiv e 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.04 - 23 - 00438 - CR

- 2 - On A pril 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 res pond 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. J URISDICTION There is no right to an appeal when a trial court r efuses 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 - Jim enez , 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 repo rter’s record has been filed, and nothing in the record04 - 23 - 00438 - CR

- 3 - 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, nothin g 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 ther efore 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. R E QUEST TO T REAT H ABEAS A PPEAL AS A M ANDAMUS P ETITION 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, Mo reno - 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 Moreno Martinez ’s appeal as a petition for writ of mandamus. After considering the pe tition and the record, we deny Moreno - Martinez ’s request for mandamus relief. See id . at *2

– 4. C ONCLUSION 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 con tentions 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 part ies.” 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.04 - 23 - 00438 - CR

- 4 - want of jurisdiction and, at Moreno - Martinez ’s request, treat his appeal as a petition for writ of mandamus . Finally , w e deny without prejudice Moreno - Martinez ’s petition for writ of mandamus. See T EX . R. A PP . P . 52.8(a). Any pending motions are dismissed as moot . PER CURIAM DO NOT PUBLISH