Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-23-00943-CR IN RE James RUBIO, Relator Original Mandamus Proceeding 1 PER CURIAM Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice Delivered and Filed: December 20, 2023 PETITION FOR WRIT OF MANDAMUS DENIED Relator James Rubio filed a petition for writ of mandamus for this court to order the trial court to issue an order in his habeas proceeding. However, Rubio is not entitled to the relief he has requested. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(c); Ex parte Flowers, 665 S.W.3d 575, 577 n.4 (Tex. Crim. App. 2022) (Slaughter, J., dissenting).

Under article 11.07, section 3(c), “it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement.” TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(c); Ex parte Harrington, 310 S.W.3d 452, 456 (Tex. Crim. App. 2010). “If the convicting court decides that there are no such issues, the clerk shall immediately transmit to the Court of Criminal Appeals a copy of the

This proceeding arises out of Cause No. 1991-CR-6722-W2, styled Ex parte Rubio, pending in the 187th Judicial District Court, Bexar County, Texas, the Honorable Stephanie R. Boyd presiding.

04-23-00943-CR

application, any answers filed, and a certificate reciting the date upon which that finding was made.

Failure of the court to act within the allowed 20 days shall constitute such a finding.” TEX. CODE CRIM. PROC. ANN. art. 11.07; Flowers, 665 S.W.3d at 577 n.4.

In this case, Rubio’s habeas application was forwarded to the Court of Criminal Appeals, who then dismissed the application without written order, citing the reason that Rubio’s sentence has been discharged. See Harrington, 310 S.W.3d at 456 (citing TEX. CODE CRIM. PROC. ANN. art. 11.07). The trial court has no further ministerial duty in this case. See TEX. CODE CRIM. PROC.

ANN. art. 11.07; In re Williams, No. 13-12-00228-CR, 2012 WL 1255207, at *1 (Tex. App.— Corpus Christi–Edinburg Apr. 12, 2012, no pet.) (mem. op., not designated for publication) (citing Stearnes v. Clinton, 780 S.W.2d 216, 219 (Tex. Crim. App. 1989)).

Accordingly, the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).

PER CURIAM DO NOT PUBLISH

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