Opinion
NO. 14-20-00728-CR
11-05-2020
IN RE BRETT DAVID BOGUS, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
176th District Court Harris County, Texas
Trial Court Cause No. 1433472
MEMORANDUM OPINION
On October 27, 2020, relator Brett David Bogus filed a document entitled "Relators' Motion to Seek the Record, Injunctive Relief, Appointment of Counsel, and to Reform Judgment." On October 30, 2020, relator filed a document entitled "Addendum to Relators' Motion to Seek the Record, Injunctive Relief, Appointment of Counsel, and to Reform Judgment WRIT OF MANDAMUS." We treat these documents as a petition for writ of mandamus seeking various relief against the Honorable Nikita V. Harmon, presiding judge of the 176th District Court of Harris County, and the Honorable Marilyn Burgess, Harris County District Clerk. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52.
Relator's complaints relate to matters that were presented or should have been presented in his application for a writ of habeas corpus to the Texas Court of Criminal Appeals pursuant to article 11.07 of the Texas Code of Criminal Procedure.
The Court of Criminal Appeals sent notice on September 16, 2020, that relator's application for writ of habeas corpus is denied.
We lack jurisdiction to issue a writ of mandamus against the trial judge. While the courts of appeals have mandamus jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has jurisdiction to grant relief in a post-conviction habeas corpus proceeding. Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013); Ater v. Eighth Court of Appeals, 802 S.W.3d 241, 243 (Tex. Crim. App. 1991). Therefore, this court has no jurisdiction over relator's request for relief against the trial court.
Further, this court does not have mandamus jurisdiction over district clerks unless it is shown that issuance of the writ is necessary to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221(a), (b); In re Smith, 263 S.W.3d 93, 95 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding). Relator has not shown that the issuance of a writ against the district clerk, Marilyn Burgess, is necessary to enforce this court's jurisdiction.
In any event, the relief that relator seeks in his petition is only available through an application for writ of habeas corpus to the Texas Court of Criminal Appeals pursuant to article 11.07 of the Texas Code of Criminal Procedure. Under article 11.07 of the Texas Code of Criminal Procedure, the Texas Court of Criminal Appeals has exclusive jurisdiction over post-conviction relief from final felony convictions. In re Watson, 203 S.W.3d 319, 320 (Tex. App.—Amarillo 2008, orig. proceeding). Thus, the courts of appeals do not have jurisdiction in such matters. In re Briscoe, 230 S.W.3d 196 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding). Consequently, relator must seek the relief requested in his petition in a habeas corpus proceeding in the Texas Court of Criminal Appeals. See In re James, No. 07-19-00442-CV, 2020 WL 703311, at *2 (Tex. App.—Amarillo Feb. 11, 2020, orig. proceeding).
For these reasons, we dismiss relator's petition for lack of jurisdiction.
PER CURIAM Panel consists of Justices Christopher, Jewell, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).