




 




NUMBER 13-10-00568-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG




IN RE MARCO ANTONIO BARRIENTOS




On Petition for Writ of Mandamus.




MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela
Per Curiam Memorandum Opinion


          Relator, Marco Antonio Barrientos, filed a petition for writ of mandamus in the above
cause through which he contends that the trial court erred in failing to disqualify the
Cameron County District Attorney and his office from prosecuting an indictment against
him.  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
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 he 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 he 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); Gonzalez v. State, 115 S.W.2d 278, 286 (Tex. App.–Corpus Christi
2003, pet. ref’d); 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 he has a clear right to the relief sought under the
facts and circumstances shown in this proceeding.  State ex rel. Young, 236 S.W.3d at
210.  
 
          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 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).

Delivered and filed the
28th day of October, 2010.
 

 
