Opinion
10-23-00265-CR
03-28-2024
GREGORY DEGRATE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish
From the 54th District Court McLennan County, Texas Trial Court No. 2022-3970-2
Before Chief Justice Gray, Justice Smith, and Justice Rose
The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code Ann. §§ 74.003, 75.002, 75.003.
MEMORANDUM OPINION
STEVE SMITH Justice
Appellant, Gregory Degrate, acting pro se, attempts to appeal from an order denying his "Motion to Dismiss for Lack of Subject Matter Jurisdiction Writ of Mandamus." We dismiss the appeal for lack of jurisdiction.
In separate trials, Appellant was convicted of manslaughter after killing two people while driving at an excessive speed. See Degrate v. State, 10-04-00079-CR, 2005 Tex.App. LEXIS 6102 (Tex. App.-Waco August 3, 2005, pet ref'd) (mem. op., not designated for publication); Degrate v. State, 86 S.W.3d 751 (Tex. App.-Waco 2002, pet. ref'd). In 2022, he filed a "Motion to Dismiss for Lack of Subject Matter Jurisdiction Writ of Mandamus" in the trial court asserting that the trial court lacked jurisdiction over the speeding offense in the second trial. The trial court denied what it referred to as Appellant's "Motion to Dismiss/Writ of Mandamus" on July 28, 2023. Appellant filed a notice of appeal in this Court attempting to appeal the order.
In his motion, Appellant asserted that a single indictment charged him with manslaughter and operating a motor vehicle at an excessive speed. He further asserted that his conviction for the traffic offense is void because the district court lacked jurisdiction over misdemeanor traffic violations. He contended that the judgment is fundamentally defective, and his subsequent confinement is void. He therefore requested the trial court dismiss the indictment.
Appellant's motion to dismiss is a collateral attack on a final felony conviction and, therefore, falls within the scope of a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07. Article 11.07 provides the exclusive means to challenge his conviction for manslaughter. See id.; Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013). An intermediate court of appeals has no jurisdiction over post-conviction writs of habeas corpus in felony cases. Padieu, 392 S.W.3d at 117.
Because we have no jurisdiction over what is in effect a post-conviction habea corpus proceeding, we dismiss the appeal for want of jurisdiction.
Appeal dismissed