Opinion
No. 05-19-00590-CV
05-28-2019
IN RE ROBERT JOSEPH SCHMITT, Relator
Original Proceeding from the 296th Judicial District Court Collin County, Texas
Trial Court Cause No. 296-81160-00
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Reichek
Opinion by Justice Reichek
Relator was convicted of two counts of sexual assault of a child in 2001 and is currently serving a twenty-year sentence. In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule on his "Motion to Alter or Amend the Judgment to Correct an Unauthorized and Illegal Sentence."
This proceeding is a collateral attack on a final 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. Although relator has not included a copy of the motion in the appendix to his petition, we construe the motion as an article 11.07 motion based on its title and relator's description of the motion in the petition. Only the Texas Court of Criminal Appeals has jurisdiction in final, post-conviction felony proceedings. Id; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Further, only the Texas Court of Criminal Appeals has writ jurisdiction to order a trial court to rule on a pending article 11.07 motion. Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117-18 (Tex. Crim. App. 2013); In re Ward, No. 12-15-00142-CR, 2015 WL 3505189, at *1 (Tex. App.—Tyler June 3, 2015, orig. proceeding) (mem. op.).
Because article 11.07 applies to relator's pending "Motion to Alter or Amend the Judgment to Correct an Unauthorized and Illegal Sentence," and this Court has no writ jurisdiction to rule on any matters pertaining to a pending article 11.07 motion, we are without jurisdiction to entertain relator's petition for writ of mandamus. Accordingly, we dismiss this proceeding for want of jurisdiction.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE 190590F.P05