In Re John D. Ferrara v. the State of Texas

NUMBER 13-25-00539-CR

          COURT OF APPEALS

    THIRTEENTH DISTRICT OF TEXAS

     CORPUS CHRISTI – EDINBURG


        EX PARTE JOHN D. FERRARA


ON APPEAL FROM COUNTY COURT AT LAW NO. 5
       OF CAMERON COUNTY, TEXAS
                               NUMBER 13-25-00684-CR

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI – EDINBURG


                                  IN RE JOHN D. FERRARA


                      ON PETITION FOR WRIT OF MANDAMUS


                               MEMORANDUM OPINION

         Before Chief Justice Tijerina and Justices Peña and West
             Memorandum Opinion by Chief Justice Tijerina1

        By notice of appeal filed in our appellate cause number 13-25-00539-CR and by

petition for writ of mandamus filed in our appellate cause number 13-25-00684-CR, John

D. Ferrara seeks to set aside an order2 signed on September 22, 2025, that denied his

first amended application for writ of habeas corpus. We address both causes in a single

memorandum opinion in the interests of judicial economy and efficiency. In cause number

13-25-00539-CR, we dismiss the appeal, and in cause number 13-25-00684-CR, we deny

the petition for writ of mandamus.

        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).

       2 This appeal and original proceeding arise from trial court cause number 2023-CCL-00553 in the

County Court at Law No. 5 of Cameron County, Texas. The original trial judge was the Honorable Estela
Chavez Vaquez, and after her recusal, the Honorable Rogelio Valdez was assigned to preside over the
case. See id. R. 52.2.


                                                     2
                                        I.      BACKGROUND

        Ferrara was convicted of the misdemeanor offense of harassment. See TEX. PENAL

CODE § 42.07. He filed an application for post-conviction habeas relief on the basis that

he was suffering collateral consequences from his conviction in the form of eligibility for

federal employment and the inability to obtain licensure as a Texas peace officer. The trial

court denied his application, and we affirmed that ruling on appeal. See Ex parte Ferrara,

No. 13-21-00101-CR, 2022 WL 2348529, at *1 (Tex. App.—Corpus Christi–Edinburg June

30, 2022, no pet.) (mem. op., not designated for publication).

        Thereafter, on or about July 17, 2023, Ferrara filed a second application for post-

conviction habeas relief pursuant to article 11.09 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. art. 11.09 (governing applications for writ of

habeas corpus in misdemeanor cases).3 On May 2, 2025, Ferrara filed a first amended

application for habeas relief and a supplement to that application. On May 7, 2025, the

judge held a non-evidentiary status hearing on the case and orally denied Ferrara’s

application. On May 14, 2025, Ferrara filed a motion for reconsideration. That same day,

Ferrara filed a motion to recuse the judge, and the judge recused. Thereafter, the case

was submitted to an assigned judge.

        On June 12, 2025, the assigned judge held a non-evidentiary status hearing on

the case. The assigned judge informed the parties that he would render a written order

on the oral ruling originally rendered in the case and would proceed to consider Ferrara’s

motion for reconsideration of that ruling. On August 6, 2025, the assigned judge set


        3 In the underlying proceedings, the State advised the trial court that it was “not precluded from

considering the merits of the second application because article 11.09—unlike articles 11.07, 11.071, and
11.072—does not require an applicant to surmount a subsequent-writ bar. See TEX. CODE CRIM. PROC. arts.
11.07, 11.071, 11.072, 11.09.


                                                    3
Ferrara’s motion for reconsideration for a hearing to be held on September 25, 2025. On

September 22, 2025, the trial court signed an order denying Ferrara’s first amended

application for habeas corpus relief which stated:

       On this the 12th day of June, 2025, came before the Court, and having been
       presented to the Court, the Court is of the opinion that it will adopt the
       decision of [the original judge] to DENY Petitioner’s First Amended
       Application for Habeas Corpus Relief.

             IT IS THEREFORE ORDERED that Petitioner’s First Amended
       Application for Habeas Corpus Relief be DENIED.

       On October 22, 2025, Ferrara filed a notice of appeal regarding the September 22,

2025 order. In his notice of appeal, Ferrara stated that he also intended to pursue

mandamus relief regarding this order. On October 24, 2025, the assigned judge signed

“Findings on Petitioner’s First Amended Application for Writ of Habeas Corpus.” This order

stated in relevant part that:

   •   On September 25, 2025, [the assigned judge] had a hearing where he took
       judicial notice of all documents, pleadings, prior rulings of the Thirteenth
       Court of Appeals and [the original judge], and arguments of both parties.
       Additionally, the Court took the Motion for Reconsideration under
       advisement and also requested from [Ferrara] to submit a transcript of his
       Plea of Nolo Contendere and of this proceeding. [The assigned judge] was
       to rule on the Motion for Reconsideration once he received and reviewed
       said transcripts.

   •   On October 22, 2025, [Ferrara] filed a Notice of Appeal and Intent to Seek
       Mandamus Relief with the clerk’s office.

   •   On October 23, 2025, Court Administrator Monica Lopez emailed [the
       assigned judge] the Notice of Appeal before [the assigned judge] could rule
       on the Motion for Reconsideration in writing. [The assigned judge] considers
       this a premature Notice of Appeal which may prohibit him from submitting
       his ruling due to a potential lack of jurisdiction. In the alternative, if it is
       determined that the Court retains jurisdiction over this pending Motion for
       Reconsideration, the Court will let said Motion be DENIED by operation of
       law.

       On December 29, 2025, Ferrara filed a petition for writ of mandamus challenging


                                              4
the trial court’s order, and on December 30, 2025, Ferrara filed an amended petition for

writ of mandamus. The Court requested and received a response to the petition for writ

of mandamus from the State. See TEX. R. APP. P. 52.2, 52.4, 52.8.

                       II.    APPEAL IN CAUSE NO. 13-25-00539-CR

       We first address the threshold issue of our jurisdiction over Ferrara’s appeal. “The

appealability of a habeas proceeding turns not upon the nature of the claim but upon the

use of the procedure itself and the trial court’s decision to consider the claim (i.e. ‘issue

the writ’).” Greenwell v. Ct. of Apps. for the Thirteenth Jud. Dist., 159 S.W.3d 645, 650

(Tex. Crim. App. 2005) (orig. proceeding). When the trial court refuses to issue a writ or

denies an applicant a hearing on the merits of the claims, there is no right to appeal. Ex

parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008); see also Ex parte Breaux,

No. 09-25-00117-CR, 2025 WL 1450715, at *1 (Tex. App.—Dallas May 21, 2025, no pet.)

(per curiam) (mem. op., not designated for publication). In making a merits-based

decision on an application for a writ of habeas corpus, a trial court generally issues the

writ, then considers evidence to determine whether the applicant’s claims have merit and

whether the requested relief should be granted. See State v. Lara, 924 S.W.2d 198, 203

(Tex. App.—Corpus Christi–Edinburg 1996, no pet.) (citing Ex parte Noe, 646 S.W.2d

230, 231 (Tex. Crim. App. 1983)). A trial court may issue a merits-based ruling denying

an application for pretrial writ of habeas corpus without formally issuing a writ or

conducting an evidentiary hearing if the record reflects that it did so. See Ex parte

Villanueva, 252 S.W.3d at 395 (recognizing that even when the trial court has not formally

issued a writ, if the court rules on the merits, the court has “in effect, issued the writ”).




                                               5
        The record does not show that either the original judge or the assigned judge

issued a writ in this case. Further, neither the original judge nor the assigned judge held

an evidentiary hearing on Ferrara’s first amended application before the assigned judge

signed the written order denying relief on September 22, 2025.4 The order on Ferrara’s

first amended application for writ of habeas corpus states merely that the application is

denied. There is no indication that the assigned judge considered the merits of the

application before issuing the denial. 5 In fact, the order specifically states that the

assigned judge “will adopt” the verbal ruling issued by the original judge. Thus, although

the trial court’s order states that it held a hearing on September 25, 2025, neither the

record nor the order reflects a merits-based ruling on Ferrara’s first amended application.

We therefore conclude that we lack jurisdiction over the appeal. See Ex parte Villanueva,

252 S.W.3d at 394 (recognizing that a losing party may appeal from the denial of a writ of

habeas corpus only when “there is a hearing held on the applicant’s claims and there is

a ruling on the merits of the claims”).

           III.    PETITION FOR WRIT OF MANDAMUS IN CAUSE NO. 13-25-00684-CR

        When a trial court refuses to issue a writ or denies an applicant a hearing on the

merits, an applicant typically may file an application for a writ of mandamus. See id. By


         4 We note that Ferrara expressly contends that the assigned judge failed to hold an evidentiary

hearing; whereas, the State contends that the assigned judge adopted the original judge’s ruling after
conducting an evidentiary hearing. After examining and fully considering the record, we agree with Ferrara.
We have reporter’s records from the May 7, 2025 hearing before the original judge and a June 12, 2025
hearing before the assigned judge, and neither hearing was evidentiary in nature.
         5 As discussed, the assigned judge held a hearing on September 25, 2025, after it had denied

Ferrara’s first amended application for writ of habeas corpus. The findings indicate that the assigned judge:
(1) took judicial notice of certain matters at that hearing; (2) requested Ferrara to submit transcripts for the
hearing on Ferrara’s original plea and the September 25, 2025 hearing; and (3) planned to rule on the
motion for reconsideration after considering those additional matters. Nothing in the record indicates that
Ferrara supplied the assigned judge with the requested transcripts, and the record before this Court fails to
include a transcript for the September 25, 2025 hearing. Ultimately, the assigned judge denied Ferrara’s
motion for reconsideration not on the merits but because of either a potential lack of jurisdiction or as a
matter of law.


                                                       6
petition for writ of mandamus, Ferrara alleges that the trial court erred by: (1) treating his

application for writ of habeas corpus as a “successive” writ; (2) dismissing his application

despite the presentation of “new, previously unavailable evidence”; (3) failing to hold an

evidentiary hearing or considering the merits of his application; and (4) denying relief

when the State asserted that his plea to the underlying offense “was at least involuntary.”

        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).

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.”); see generally TEX. R. APP. P. 52.3,

52.7.

        The Court, having examined and fully considered Ferrara’s petition for writ of

mandamus, the State’s response, and the applicable law, is of the opinion that Ferrara

has not met his burden to obtain relief. Accordingly, we deny the petition for writ of

mandamus.




                                              7
                                IV.    CONCLUSION

       We dismiss the appeal in cause number 13-25-00539-CR, and we deny the

petition for writ of mandamus in cause number 13-25-00684-CR.

                                                         JAIME TIJERINA
                                                         Chief Justice

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

Delivered and filed on the
20th day of April, 2026.




                                         8