# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CR EX PARTE Eric Ruben CALDERON From the County Court , Kinney County, Texas Trial Court No. 11041CR Honorable Susan D. Reed , Judge Presiding PER CURIAM Sitting: Patricia O. Alvarez, Justice Beth Watkins , Justice Liza A. Rodriguez , Justice Delivered and Filed: June 5, 2024 DISMISSED FOR WANT OF JURISDICTION; PETITION FOR WRIT OF MANDAMUS DENIED Appellant, Eric Ruben Calderon, appeals from the denial of his pretrial application for wri t of habeas corpus. We dismiss the appeal for want of jurisdiction, treat the appeal as a petition for writ of mandamus at Calderon’s request, and deny his mandamus petition. B ACKGROUND Calderon , a noncitizen, was arrested under Operation Lone Star and cha rged with the misdemeanor offense of criminal trespass. On January 26, 2023, Calderon filed an application for writ of habeas corpus seeking dismissal of the criminal trespass charge because, he alleged, the State engaged in selective prosecution, in viola tion of his right to equal protection, when it decided to charge him. On March 15, 2023, the trial court issued an order stating, “the Application is denied without hearing AND THE WRIT WILL NOT ISSUE .” Calderon timely filed a notice of appeal.04

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- On April 8, 2024 , we issued an order notifying Calderon 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. Calderon filed a response on April 11, 2024 , in which he argues that the trial court’s “order is appealable.” Calderon also requests, in the event we determine that we lack jurisdiction over his appeal, that we treat his appeal as a petition for writ of mandamus. J URISDICTION There is no right to an appeal when a trial court refuses 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

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- 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

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- 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 hearing AND THE WRIT WILL NOT ISSUE ”

— language we have previously held does not suggest a ruling on the merits. E .g. , In re Saravia

- Bonilla , No. 04

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- 00637

- CR, 2023 WL 6850595, at *2 (Tex. App.

— San Antonio Oct. 18, 2023, no pet.) (mem. op., not designated for publication); see Molina Valencia , 2024 WL 1642923, at *2 (citing In re Martinez

- Jimenez , No. 04

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- 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 , 67504

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- S.W.3d 113, 115 (Tex. App.

— San Antonio 2023, orig. proceeding)). Further, no reporter’s record has been filed, and nothing in the record shows that the trial court held any hearings related to Calderon ’s habeas application or the merits thereof or otherwise considered any evidence related to the application. Consequently, nothing in our review of the entire record reflects tha t the trial court considered or expressed an opinion on the merits of Calderon ’s habeas claims. 1 See Molina Valencia , 2024 WL 1642923, at *2 ; Ex parte Garcia , 683 S.W.3d 467, 473 (Tex. App.

— San Antonio 2023, no pet.) (en banc). We therefore conclude that the trial court did not rule on the merits of Calderon ’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 EQUEST 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 appe llant. See Molina Valencia , 2024 WL 1642923, at *2. As stated above, Calderon 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 Calderon ’s appeal
as a petition for writ of mandamus.

1 Calderon 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.” Similarly, Calderon argues i n his April 11, 2024 response to our April 8, 2024 order that the trial court’s “order is appealable because .

. . the lower court has previously considered the merits of the exact same claim dozens of times in other Operation Lone Star cases.” 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 contentions which depend upon factual assertions outside of the record.”). Nor may we consider evidence from the record of another case, unless we take jud icial notice of our own records from “the same or related proceedings involving same or nearly same parties.” 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 th e trial court ruled on the merits of Calderon ’s habeas application in this case.04

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- After considering the petition and the record, we deny Calderon ’s request for mandamus relief. See id

. at *2

– 4. C ONCLUSION Because the trial court’s denial of Calderon ’s habeas application was not based on the merits, we la ck jurisdiction to review his habeas appeal. We therefore dismiss his appeal for want of jurisdiction and, at Calderon ’s request, treat his appeal as a petition for writ of mandamus

. Finally , we deny without prejudice Calderon ’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