In re MacArio Rincon v. the State of Texas, No. 13-24-00281-CR (Tex. App.—Corpus Christi–Edinburg June 26, 2024). · Go Syfert
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In re MacArio Rincon v. the State of Texas, No. 13-24-00281-CR (Tex. App.—Corpus Christi–Edinburg June 26, 2024). Book View Copy Cite
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In Re MacArio Rincon
v.
the State of Texas
13-24-00281-CR.
Court of Appeals of Texas.
Jun 26, 2024.
Unpublished opinion
Published
NUMBER 13-24-00281-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE MACARIO RINCON

ON PETITION FOR WRIT OF MANDAMUS

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva Memorandum Opinion by Justice Benavides1

This Court handed down its memorandum opinion in this matter on May 29, 2024. See In re Rincon, No. 13-24-00281-CR, 2024 WL 2760479, at *1 (Tex. App.—Corpus Christi–Edinburg May 29, 2024, orig. proceeding) (mem. op., not designated for publication). Relator Macario Rincon has now filed a motion for rehearing. We deny relator’s motion for rehearing as moot, but we withdraw our memorandum opinion of May Amarillo 2022, orig. proceeding); In re Pena, 619 S.W.3d at 839; see also TEX. R. APP. P. 52.3(k)(1)(A) (delineating the required form and content for a petition in an original proceeding), R. 52.7(a) (providing that the relator “must file” a record including specific matters).

The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that relator has not met his burden to obtain mandamus relief. Further, we note that the exclusive method for a collateral attack on a final felony conviction is through a writ of habeas corpus filed with the Texas Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07; Ater v. Eighth Ct. of Apps., 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (“We are the only court with jurisdiction in final post- conviction felony proceedings.”); see also Calton v. Schiller, 498 S.W.3d 247, 252 (Tex. App.—Texarkana 2016, pet. denied). Accordingly, we deny the petition for writ of mandamus.

GINA M. BENAVIDES

Justice Do not publish.

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

Delivered and filed on the 26th day of June, 2024.

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). 29,2024, and issue this memorandum opinion in its stead in order to correct a clerical error in our original memorandum opinion. Relator filed a pro se petition for writ of mandamus in this Court through which he asserts that an “enhancement” on his August 26, 2019 judgment of conviction for aggravated assault with a deadly weapon and unlawful restraint is illegal and void. See TEX. PENAL CODE ANN. §§ 22.02(a)(2) (aggravated assault with a deadly weapon), 20.02(c)(2)(a) (unlawful restraint). 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. See 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). It is the relator’s burden to properly request and show entitlement to mandamus relief. See id.; In re Pena, 619 S.W.3d 837, 839 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding); see also Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (per curiam) (“Even a pro se applicant for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”). This burden includes providing a sufficient record to establish the right to mandamus relief. In re Schreck, 642 S.W.3d 925, 927 (Tex. App.—