Opinion issued November 7 , 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 008 54
- CR NO. 01
- 19
- 008 55
- CR

——————————— IN RE WALTER ALEXAND ER CRUZ , Relat or

Original Proceeding on Petition for Writ of Habeas Corpus Origi n a l Proceeding on Petition for Writ of Mandamus

MEMORANDU M OPINI ON Relator, Walter Alexander Cruz , has filed a “ Petition for Writ of Habeas of
Mandamus Motion to Set A side the Ind ictment ,” c ontending that his right to a speedy trial , among other things, h as been violated. 1 In his hy brid 2 p etition, Relator

1 The u nderlying case s are The Stat e of Texas v. Walter Alexander Cruz , cause number s 1624578 and 1625896 , pending in t he 176th District Court of Harris2

asks for the C ourt to g rant 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 man d a mus 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 v iolated ” ;

• h e “ has been repeat[ed]ly refused the [r] igh t to ob ta in any copies of his Discovery Package to understand the allegation which he is being accused of ” ;

• t he indictment “does not show on it face facts necessary to give [Relator] precise notice of the ‘nature

. . . of the accusation against him ’ ” and “ fails t o al lege all the essential acts or omissions by [Relator] necessary to constitute the offense charged ” ; and

• t he indictment “ wholly fails to allege on [its] face, fact s n ecessary to enable [Relator] to p lea d to the indictment so that a judgement wo ul d b e come a bar to su b sequent prosecution for the same contemplated in Article 21.04, C.C.P. ”
Relator ’ s prayer for relief seeks that the indictment s be set aside, the cause s dismissed and t hat he be “ release[d] and discharge[d]

. . . from pr osecution. ”
This C ourt has jurisdiction to issue a writ of habeas corpus in civil contempt

cases. T EX

. G O V ’ T C ODE A NN

. § 22.221 (d)

. I n crimi na l matt ers , o ur hab eas co rpus jurisdiction is appellate only, and we do not have original habeas cor pus County, Texas , the Honorable Nikita V. Harmon presiding. Relator ’ s petition is for both cases.
2 Although the petitions w ere filed as a request for a single type of relief , the C ourt will construe Relator ’ s requests as pe titions for bo th habeas corp us and mandamus r eli ef

.3

jurisdiction. Ex p arte Denby, 627 S.W.2d 4 35, 435 (Tex. App.

— Houston [1st Dist.] 1981, orig. proceeding) ; s ee also Chavez v. State, 132 S.W.3d 509, 510 ( Tex.
A pp.

— Ho uston [1st D ist.] 2004, no pet .) (citing T EX

. G OV ’ T C ODE Ann. § 22.221 ) ( “ A court of ap peals does not have original habeas corpus jurisdiction in felony

cases. ” )

. If the trial court h ad denied habeas relief to Relator after a hearing, this
C ourt woul d have juri sdi ction 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 95 1, 952 (Tex

. C rim. App. 1986)

. W e lack jurisdiction over this attempt to seek pre

- conviction habeas relief directly from this C ourt. In re Lozano,
No. 14

– 12

– 00049

– CR, 2012 WL 274076, at * 1 ( Tex. App.

— Houston [14th Dist.] Jan. 31, 2012, orig. proceedin g) ( “To t h e d egree relator seeks release from custody, relator is seeking pretrial habeas co rpus relief over which this court does not have jurisdictio n
. ”) ( citing Ater v. Eighth Court of Appeals, 802 S.W.2d 2 41 , 243 (Te x. Crim. App. 1991) ). We therefore dismiss Relator ’s petition for a writ o f habea s corpus for want of jurisdiction. Concerning Relator ’ s request for mandamus relief, a relator in a ma ndamus proceeding must show that (1) he has no adequate remedy a t law and ( 2) what he seeks to compel is a ministerial act, not involving a disc retionary or judicial
decision. Lozano, 2012 WL 274076, at *1 (citing State ex rel. Young v. Sixth
Judicial Dist. Cour t of Appeal s, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007)4

(orig. proceeding)). “Cons iderat ion of a request or motion that is properly filed and
before the court is a ministerial act.” Id. ( cit ing State ex rel. Cu rry v. Gr ay, 726 S.W.2d 125, 128 (Tex. Crim. App

. 1 987) ( orig. proceeding)). To receiv e 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. proceed i ng) )

. Further, t he petition for mandamus must be accompanied with an appen dix that includes, among ot her things, “ a certified or sworn copy of the d ocument showing t he matter complained of. ” In re
Villarreal , 96 S.W.3d at 710 (identify ing three mandamus r equirements: court ’ s l e gal duty to p e r form non
- discretionary act, asking of court to perform act, and
failure of court to do so)

. See T EX

. R. A PP

. P . 52.3(k).
B ecause Relator does not show that the t rial court received any request for
relief from the asser ted speedy trial violation or any othe r purported violation, or
t hat the court was asked to rule on any such request, we must deny th e petition for
writ of manda mus. See id. (denying requested mand am us relief based on speedy trial violation where nothing s howed 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 c orpus and deny the petition for writ of mandamus. All pending mo ti ons filed in connection with these original proceedings a re dismissed as moot.5 PER CURIAM
Panel consists of J ustices Kel ly , Hightower , and Counti ss
. Do not publish

. T EX

. R. A PP

. P. 47.2( b).