NUMBER 13-23-00133-CR

COURT OF APPEALS 

THIRTEENTH DISTRICT OF TEXAS 

CORPUS CHRISTI – EDINBURG 

 

IN RE CARY D. CANTWELL

 

On Petition for Writ of Mandamus. 

 

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina

Memorandum Opinion by Justice Longoria1

On April 4, 2023, Cary D. Cantwell filed a pro se petition for writ of mandamus 

seeking to compel the trial court to rule on his application for writ of habeas corpus, 

founded on alleged violations of Cantwell’s right to a speedy trial, filed in trial court cause 

number 17-FC-4295-A in the 28th District Court of Nueces County, Texas. We deny the 

petition for writ of mandamus.

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not 

required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 

47.4 (distinguishing opinions and memorandum opinions).
2

In a criminal case, to be entitled to mandamus relief, the relator must establish 

both that the act sought to be compelled is a ministerial act not involving a discretionary 

or judicial decision and that there is no adequate remedy at law to redress the alleged 

harm. See In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding); 

In re Harris, 491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding) (per curiam); 

In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the 

relator fails to meet both requirements, then the petition for writ of mandamus should be 

denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 

210 (Tex. Crim. App. 2007) (orig. proceeding). 

This Court requested and received a response to the petition for writ of mandamus 

from the real party in interest, the State of Texas, acting by and through the District 

Attorney of Nueces County, Texas. See TEX. R. APP. P. 52.2, 52.4, 52.8. The State 

contends that the trial court acted within its discretion in disregarding relator’s application 

for writ of habeas corpus because relator filed it pro se while represented by counsel. See 

Tracy v. State, 597 S.W.3d 502, 508–09 (Tex. Crim. App. 2020) (holding that the trial 

court did not abuse its discretion by disregarding pro se motions). The State further 

asserts that relator has not met his burden to obtain relief for the trial court’s alleged failure 

to timely rule. See In re Pete, 589 S.W.3d 320, 321–22 (Tex. App.—Houston [14th Dist.] 

2019, orig. proceeding) (per curiam) (stating that a relator must establish that the trial 

court had a legal duty to rule, was asked to rule, and failed or refused to rule within a 

reasonable time, and the relator must meet this burden by providing a sufficient record to 
3

establish that the motion was properly filed and presented to the trial court for ruling) 

(collecting cases). 

The Court, having examined and fully considered the petition for writ of mandamus, 

the record, and the response filed by the State, is of the opinion that relator has not met 

his burden to obtain relief. Accordingly, we deny the petition for writ of mandamus. See 

TEX. R. APP. P. 52.8(a). 

NORA L. LONGORIA

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed on the

14th day of April, 2023.