Opinion issued November 7, 2019

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-19-00854-CR

NO. 01-19-00855-CR

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IN RE WALTER ALEXANDER CRUZ, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

Original Proceeding on Petition for Writ of Mandamus

MEMORANDUM OPINION

Relator, Walter Alexander Cruz, has filed a “Petition for Writ of Habeas of 

Mandamus Motion to Set Aside the Indictment,” contending that his right to a 

speedy trial, among other things, has been violated.1In his hybrid2 petition, Relator

 

1 The underlying cases are The State of Texas v. Walter Alexander Cruz, cause 

numbers 1624578 and 1625896, pending in the 176th District Court of Harris 
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asks for the Court to grant a “motion to set aside, dismiss, and motion to quash.”

For the reasons explained below, we dismiss the petition for writ of habeas corpus 

for lack of jurisdiction and deny mandamus relief.

In his petition, Relator asserts:

• “from the time of his arrest . . . until the date of trial . . . a period of (196) 

days expired and due to this, his right to a speedy trial was violated”;

• he “has been repeat[ed]ly refused the [r]ight to obtain any copies of his 

Discovery Package to understand the allegation which he is being accused 

of”;

• the indictment “does not show on it face facts necessary to give [Relator]

precise notice of the ‘nature . . . of the accusation against him’” and “fails to 

allege all the essential acts or omissions by [Relator] necessary to constitute

the offense charged”; and

• the indictment “wholly fails to allege on [its] face, facts necessary to enable

[Relator] to plead to the indictment so that a judgement would become a bar 

to subsequent prosecution for the same contemplated in Article 21.04, 

C.C.P.”

Relator’s prayer for relief seeks that the indictments be set aside, the causes

dismissed and that he be “release[d] and discharge[d] . . . from prosecution.”

This Court has jurisdiction to issue a writ of habeas corpus in civil contempt 

cases. TEX. GOV’T CODE ANN. § 22.221(d). In criminal matters, our habeas corpus 

jurisdiction is appellate only, and we do not have original habeas corpus 

 

County, Texas, the Honorable Nikita V. Harmon presiding. Relator’s petition is 

for both cases.

2 Although the petitions were filed as a request for a single type of relief, the Court 

will construe Relator’s requests as petitions for both habeas corpus and mandamus

relief.
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jurisdiction. Ex parte Denby, 627 S.W.2d 435, 435 (Tex. App.—Houston [1st 

Dist.] 1981, orig. proceeding); see also Chavez v. State, 132 S.W.3d 509, 510 (Tex. 

App.—Houston [1st Dist.] 2004, no pet.) (citing TEX. GOV’T CODE Ann. § 22.221)

(“A court of appeals does not have original habeas corpus jurisdiction in felony

cases.”). If the trial court had denied habeas relief to Relator after a hearing, this 

Court would have jurisdiction over the appeal from that denial. See Rodriguez v. 

Court of Appeals, 769 S.W.2d 554, 557 (Tex. Crim. App. 1989); Ex parte Twyman,

716 S.W.2d 951, 952 (Tex. Crim. App. 1986). We lack jurisdiction over this 

attempt to seek pre-conviction habeas relief directly from this Court. In re Lozano,

No. 14–12–00049–CR, 2012 WL 274076, at *1 (Tex. App.—Houston [14th Dist.] 

Jan. 31, 2012, orig. proceeding) (“To the degree relator seeks release from custody, 

relator is seeking pretrial habeas corpus relief over which this court does not have 

jurisdiction.”) (citing Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.

Crim. App. 1991)). We therefore dismiss Relator’s petition for a writ of habeas 

corpus for want of jurisdiction.

Concerning Relator’s request for mandamus relief, a relator in a mandamus 

proceeding must show that (1) he has no adequate remedy at law and (2) what he 

seeks to compel is a ministerial act, not involving a discretionary or judicial 

decision. Lozano, 2012 WL 274076, at *1 (citing State ex rel. Young v. Sixth 

Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)
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(orig. proceeding)). “Consideration of a request or motion that is properly filed and 

before the court is a ministerial act.” Id. (citing State ex rel. Curry v. Gray, 726 

S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding)). To receive

mandamus relief, a relator must show that “the trial court received, was aware of, 

and asked to rule on the motion.” Id. (citing In re Villarreal, 96 S.W.3d 708, 710 

(Tex. App.—Amarillo 2003, orig. proceeding)). Further, the petition for mandamus 

must be accompanied with an appendix that includes, among other things, “a 

certified or sworn copy of the document showing the matter complained of.” In re 

Villarreal, 96 S.W.3d at 710 (identifying three mandamus requirements: court’s 

legal duty to perform non-discretionary act, asking of court to perform act, and 

failure of court to do so). See TEX. R. APP. P. 52.3(k).

Because Relator does not show that the trial court received any request for 

relief from the asserted speedy trial violation or any other purported violation, or 

that the court was asked to rule on any such request, we must deny the petition for 

writ of mandamus. See id. (denying requested mandamus relief based on speedy 

trial violation where nothing showed trial court had been made aware of or asked 

to rule on request for trial).

We dismiss Relator’s petition for a writ of habeas corpus and deny the 

petition for writ of mandamus. All pending motions filed in connection with these 

original proceedings are dismissed as moot.
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PER CURIAM

Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).