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finding "[e]ven though [relator's habeas] application is no longer 'pending,' we believe that we do not have jurisdiction over relator's mandamus petition because he is challenging the trial court's express or implied rulings made during his prior 11.07 application"
Summary of this case from In re VillaOpinion
NO. 02-16-00077-CV
03-28-2016
IN RE LARRY JOE MORGAN RELATOR
ORIGINAL PROCEEDING
TRIAL COURT NO. 12493952D MEMORANDUM OPINION
See Tex. R. App. P. 47.4, 52.8(d).
Relator Larry Joe Morgan, incarcerated and proceeding pro se, has filed a "Motion Requesting Hearing," which we construe as a petition for writ of mandamus. Relator asks us to order a hearing so that he can obtain the "necessary records" from the trial court "to do a meaningful 11.07 writ of habeas corpus." He also complains that he never received a copy of the clerk's record or the reporter's record from his trial and that the trial court failed to "acknowledge or reply" to his request to borrow the record, his motion for proposed findings of fact and conclusions of law, and his motion objecting to a "paper hearing" on his application. He also requests appointment of counsel.
Specifically, he requests copies of audio recordings and transcripts of 911 calls related to his case; his and the complainant's medical records; all photographs, including crime scene photos; and audio and video recordings from his trial and "in-house cameras."
A jury convicted relator of aggravated assault with a deadly weapon, found the enhancement paragraph alleged in the indictment "True," and sentenced him to 20 years' confinement. See Tex. Penal Code Ann. §§ 12.42(b) (West Supp. 2015), 22.02(a)(2) (West 2011). His conviction was affirmed on appeal. Morgan v. State, No. 07-13-00136-CR, 2014 WL 2553376, at *1 (Tex. App.—Amarillo June 4, 2014, pet. ref'd) (mem. op., not designated for publication).
All of relator's complaints and requested relief relate to documents and motions he filed in the trial court during proceedings on an article 11.07 application for writ of habeas that he filed with the trial court on March 31, 2015, and that the Texas Court of Criminal Appeals denied without written order on November 11, 2015.See Ex parte Morgan, No. WR-83,621-02 (Tex. Crim. App. Nov. 11, 2015). The habeas corpus procedure set out in article 11.07 of the code of criminal procedure provides the exclusive remedy for felony postconviction relief in state court. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for theEighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding). Only the Texas Court of Criminal Appeals has jurisdiction over matters related to postconviction relief from an otherwise final felony conviction. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); see also Tex. Code Crim. Proc. Ann. art. 11.07; Bd. of Pardons & Paroles ex rel. Keene, 910 S.W.2d at 483. We generally have no authority to issue writs of mandamus in criminal law matters pertaining to proceedings under article 11.07. See In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).
It appears that relator did not know that the Texas Court of Criminal Appeals had denied his application for writ of habeas corpus when he filed his mandamus petition. --------
In Padieu v. Court of Appeals of Texas, Fifth District, the Texas Court of Criminal Appeals held that when an 11.07 application is not pending, intermediate appellate courts have jurisdiction to rule on mandamus petitions relating to motions requesting access to documents to be used to prepare future habeas applications. 392 S.W.3d 115, 117-18 (Tex. Crim. App. 2013) (orig. proceeding). That is not the case here; relator filed an 11.07 application, which the court of criminal appeals has denied. Even though his application is no longer "pending," we believe that we do not have jurisdiction over relator's mandamus petition because he is challenging the trial court's express or implied rulings made during his prior 11.07 application. See In re Estes, No. 11-15-00002-CR, 2015 WL 301983, at *1 (Tex. App.—Eastland Jan. 22, 2015, orig. proceeding) (mem. op., not designated for publication); see also In re Hamilton, No. 03-13-00384-CV, 2013 WL 3336839, at *1 (Tex. App.—Austin June 26, 2013, orig. proceeding) (mem. op., not designated for publication) (holding that court of appeals did not have mandamus jurisdiction over complaint regarding motion filed during 11.07 proceeding).
Accordingly, we dismiss relator's petition for writ of mandamus for want of jurisdiction.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: DAUPHINOT, GARDNER, and MEIER, JJ. DELIVERED: March 28, 2016