                     COURT OF APPEALS

             THIRTEENTH DISTRICT OF TEXAS

               CORPUS CHRISTI - EDINBURG


                     NUMBER 13-06-00613-CR

THE STATE OF TEXAS,                                       Appellant,

                                 v.

FELIX CASTILLO,                                           Appellee.


  On appeal from the 197th District Court of Willacy County, Texas.


                     NUMBER 13-08-00343-CR

                   IN RE: THE STATE OF TEXAS


                  On Petition for Mandamus Relief.


                   MEMORANDUM OPINION

            Before Justices Yañez, Rodriguez, and Vela
            Memorandum Opinion by Justice Rodriguez
       The State indicted appellee, Felix Castillo, for attempted murder and deadly

conduct. See TEX . PENAL CODE ANN . §§ 15.01(a), 19.02(1), (2), 22.05(2)(b) (Vernon 2003).

By parallel interlocutory appeal and petition for mandamus relief, the State complains of

the trial court's denial of its motion for clarification of an order prohibiting the introduction

of evidence from a previous trial. We dismiss the State's appeal for want of jurisdiction and

deny mandamus relief.

                                        I. Background

       In a previous case, Castillo was tried for attempted murder. In that case, the State

alleged that Castillo shot at the alleged victim as the victim was leaving a store. See State

v. Castillo, No. 4957-C (197th District Ct., Willacy County, Tex. September 30, 2005).

Castillo was acquitted. The State then indicted Castillo for attempted murder and deadly

conduct, alleging that members of a family were injured when caught in the middle of the

shooting of the alleged victim in Castillo's previous trial.

       Castillo filed a motion in limine requesting that the trial court "instruct the prosecuting

attorney not to mention, refer to or otherwise bring before the jury either directly or

indirectly the matters set forth above without first obtaining a specific ruling from the Court

outside the presence of the jury that such references and testimony is proper and

admissible." The "matters set forth above" included, among other things, the following:

       That [Castillo] may have been previously convicted of any criminal offense
       or may have been charged or arrested for any criminal offense or may have
       any criminal case presently pending against him; and

       That [Castillo] has committed other crimes, bad acts or extraneous offenses
       which are not part of this indictment.

The record does not contain a written order ruling on Castillo's motion in limine.


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        In a proposed "Order Suppressing Evidence," the State requested that the trial court

consider "evidence proffered by the State of Texas" and allow or disallow the admission

of certain evidence from Castillo's previous trial as listed in the order.1 The trial court

conducted a hearing on the State's requested order, but did not sign it. Instead, the trial

court signed an order denying the State's request to offer evidence and ordering the State

"not to introduce evidence regarding the [previous] trial."

        The State filed a motion for clarification of the order claiming that the trial court "in

essence [had] not made any order in that the order signed does not specify what evidence

if any is being suppress[ed] from the previous trial (Cause No. 4957-C) and can not be

used in the case at bar." The State prayed that the trial court specifically clarify which

evidence would be considered res judicata and which evidence would be considered "mere

information that is only shared by both case scenarios." The motion for clarification was

denied, and the trial court reiterated its instructions that the State was "not to introduce

        1
          In its proposed "Order Suppressing Evidence," the State specifically asked the trial court to
determ ine whether to allow or not allow the following evidence from the previous trial:

        1.       That witness Oviedo on March 17, 2004 was em ployed as a clerk in Raym ondville
                 Superette a convenient store[.] Allowed _____Not Allowed_____

        2.       That witness Oviedo prior to March 17, 2004 knew both Defendant Felix Castillo and
                 the victim Juan Alfaro. Allowed_____Not Allowed_____

        3.       That witness Oviedo on March 17, 2004 saw both the Defendant's car and the
                 victim 's car in the parking lot of the store at the tim e. Allowed_____Not
                 Allowed_____

        4.       That witness Oviedo on March 17, 2004 saw the gun fire com ing out of
                 Defendant's car. Allowed_____Not Allowed_____

        5.       W itness Oviedo saw the gun fire com ing out of Defendant's car. Allowed_____Not
                 Allowed_____

        6.       W itness Oviedo on March 17, 2004 saw that Defendant's car went in the sam e
                 direction as victim 's car. Allowed_____Not Allowed_____

(Citations from record of previous trial om itted.)
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evidence, whether or not said evidence was proffered by the State of Texas in Cause No.

4957-C that was tried on September 12, 2005[,] and whereby the Defendant, Felix Castillo,

was acquitted by a jury."

                              II. No Interlocutory Jurisdiction

       The State urges this Court to construe Castillo's motion in limine as a motion to

suppress evidence, and to construe the trial court's order as an order granting that motion

to suppress.    To do so would provide the State with statutory authority to file an

interlocutory appeal. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(5) (Vernon Supp.

2007) (providing that the State is entitled to appeal an order granting a motion to suppress

evidence). Castillo argues that we do not have jurisdiction. We agree.

       Article 44.01(a)(5) allows the State to appeal from an order granting a motion to

suppress evidence. See id. In State v. Cowsert, the court of criminal appeals described

a motion to suppress evidence as "one in which the defendant claims that certain evidence

should not be admitted at trial for a constitutional, statutory, evidentiary, or procedural

reason." State v. Cowsert, 207 S.W.3d 347, 351 (Tex. Crim. App. 2006). Here, Castillo's

motion in limine did not urge that certain evidence should not be admitted at trial. See id.

Instead, Castillo requested that the trial court rule on the admissibility of certain evidence,

including evidence of prior criminal charges, arrests and prior bad acts. We cannot

construe the motion in limine as a motion to suppress evidence. See id.

       Moreover, even were we to do so, the trial court's order did not grant the motion to

suppress evidence. Article 44.01 "limits the State's right to appeal to orders that grant

motions to suppress evidence." Id. at 350 (emphasis in original). The order in this case

denied the State's motion for clarification—a motion that asked the trial court to clarify



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which evidence would be considered res judicata and which would be considered

information shared by both case scenarios. The order denied relief to the State; it did not

grant relief requested by a defendant in a motion to suppress evidence.

       Accordingly, because the State can only file an interlocutory appeal from the grant

of a defendant's motion to suppress, we conclude article 44.01(a)(5) does not provide a

basis from which the State can file this appeal. The State provides no other authority for

this interlocutory appeal, and we find none.

                                   III. Mandamus Relief

       The State also requests that we issue a writ of mandamus ordering the trial court

to "properly rule" on the items listed in its proposed "Order Suppressing Evidence." To

establish that it is entitled to mandamus relief, the relator must show that (1) he has no

adequate remedy at law to redress his alleged harm and (2) what he seeks to compel is

a ministerial act, not involving a discretionary or judicial decision. State ex. rel. Young v.

Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App.

2007). However,

       mandamus may not be used to give the State a right to appeal that was not
       granted by the Legislature in Article 44.01 of the Texas Code of Criminal
       Procedure. But the limitations in Article 44.01 on the State's right to appeal
       are no impediment to the State's use of mandamus to correct judicial action
       that is clearly contrary to well-settled law, whether the law is derived from a
       statute, rule, or opinion of a court.

State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (emphasis

in original).

       The State argues that the trial court in this case is "acting incorrectly" by not

informing it as to what evidence can be introduced from the previous trial. However, the




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State has not provided any statute, rule, or case-law precedent that firmly and

unequivocally mandate that the trial court must rule on the items listed in its proposed

"Order Suppressing Evidence," and we find none. See id. Therefore, the State has not

shown that the use of mandamus will correct a judicial action that is clearly contrary to well-

settled law. See id.

                                       IV. Conclusion

       We dismiss the State's interlocutory appeal for want of jurisdiction in cause number

13-06-00613-CR, and we deny the State's petition for mandamus relief in cause number

13-08-00343-CR.



                                                   NELDA V. RODRIGUEZ
                                                   Justice

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

Memorandum Opinion delivered and
filed this 5th day of June, 2008.




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