                                    NUMBER 13-08-00647-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                                  IN RE: YOLANDA DE LEON


                             On Petition for Writ of Mandamus.


                                 MEMORANDUM OPINION

                        Before Justices Yañez, Garza, and Vela
                          Per Curiam Memorandum Opinion1

        Relator, Yolanda De Leon, filed a petition for writ of mandamus in the above cause

through which she contends that the trial court erred in failing to disqualify the Cameron

County District Attorney and his office from prosecuting an indictment against her. The

Court requested and received a response from the real party in interest, the State of

Texas, acting by and through the Criminal District Attorney of Cameron County, Texas.

As stated herein, we deny the petition for writ of mandamus.

        Mandamus relief may be granted if the relator shows that: (1) the act sought to be


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          See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but
is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions).
compelled is purely ministerial; and (2) there is no adequate remedy at law. State ex rel.

Young v. Sixth Judicial Dist. Court of Appeals At Texarkana, 236 S.W.3d 207, 210 (Tex.

Crim. App. 2007) (orig. proceeding); Deleon v. Dist. Clerk, 187 S.W.3d 473, 474 (Tex.

Crim. App. 2006) (orig. proceeding). The relator must have a “clear right” to the relief

sought and the merits of the relief sought must be “beyond dispute.” Deleon, 187 S.W.3d

at 474. “The requirement of a clear legal right necessitates that the law plainly describes

the duty to be performed such that there is no room for the exercise of discretion.” See id.

Stated otherwise, relator must show that she has a clear right to the relief sought, as when

the facts and circumstances dictate but one rational decision under unequivocal, well-

settled and clearly controlling legal principles. State ex rel. Young, 236 S.W.3d at 210.

       Based on the petition and record provided, relator has not demonstrated that she

is entitled to mandamus relief. See TEX . R. APP. P. 52.8. First, under the circumstances

of the present case, relator has not established that she lacks an adequate remedy by

appeal. Cf. In re Guerra, 235 S.W.3d 392, 421 (Tex. App.–Corpus Christi 2007, orig.

proceeding). In this regard, we note that appellate courts routinely review the denial of a

motion to disqualify the prosecution by appeal. See, e.g., Landers v. State, 256 S.W.3d

295, 298 (Tex. Crim. App. 2008); Zarychta v. State, 44 S.W.3d 155, 162 (Tex.

App.–Houston [14th Dist.] 2001, pet. ref’d).        Second, relator has not shown that

“unequivocal, well-settled and clearly controlling legal principles” dictate that she has a

clear right to the relief sought under the facts and circumstances shown herein. State ex

rel. Young, 236 S.W.3d at 210. Third, and finally, without evidence and testimony, relator

has not met the burden of providing this Court with a record sufficient to establish her right

to mandamus relief based on the refusal to disqualify. See generally TEX . R. APP. P. 52;

Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding).


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

and the response thereto, is of the opinion that relator has not shown herself entitled to the

relief sought. Accordingly, the stay previously imposed by this Court is LIFTED. See TEX .

R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is

effective until the case is finally decided.”). The petition for writ of mandamus is DENIED.

See id. 52.8(a).

                                                         PER CURIAM


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

Memorandum Opinion delivered and filed
this 6th day of August, 2009.




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