Ex Parte Isriel McBride, Jr.

• Court: Court of Appeals of Texas
• Decided: June 18, 2019
• Docket: 07-19-00218-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00218-CR

EX PARTE ISRIEL MCBRIDE, JR., RELATOR

ORIGINAL PROCEEDING

June 18, 2019

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Relator, Isriel McBride, Jr., has filed a petition for writ of mandamus seeking an

out-of-time appeal from his criminal conviction. We dismiss the proceeding for want of

jurisdiction.

In 1996, McBride was convicted of attempted murder and sentenced to life

imprisonment. He appealed his conviction in 2003. We dismissed the untimely appeal

for want of jurisdiction in McBride v. State, No. 07-03-00143-CR, 2003 Tex. App. LEXIS

10485, at *2 (Tex. App.—Amarillo Dec. 12, 2003, no pet.) (mem. op.). Now pending

before the Court is a petition for writ of mandamus wherein McBride asks this Court to

direct the Honorable Les Hatch, Judge of the 237th District Court, to grant him an out-of-

time appeal. In his petition, McBride states that he has previously filed an application for writ of habeas corpus in the trial court and cannot file any future applications without

meeting the requirements of article 11.07, section 4, of the Code of Criminal Procedure.

Because McBride seeks habeas relief from this Court through his petition for writ

of mandamus, we construe his pleading as an application for writ of habeas corpus.1 See

Ex parte Gray, 649 S.W.2d 640, 642 (Tex. Crim. App. 1983) (requiring courts to look to

the substance of the relief sought, rather than the nomenclature or form of the pleading);

TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3 (West 2015) (providing that relief from a final

felony conviction may be obtained by filing an application for writ of habeas corpus

returnable to the Court of Criminal Appeals). However, this Court does not have original

habeas corpus jurisdiction in criminal matters. Watson v. State, 96 S.W.3d 497, 500 (Tex.

App.—Amarillo 2002, pet. ref’d). Only the Court of Criminal Appeals has authority to grant

relief in post-conviction habeas corpus proceedings concerning final felony convictions.

Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985); TEX. CODE CRIM. PROC.

ANN. art. 11.07, § 5.

Accordingly, we dismiss this original proceeding for want of jurisdiction.

Per Curiam

Do not publish.

1 Were this Court to construe McBride’s pleading as a petition for writ of mandamus, McBride failed to show that (1) the trial court abused its discretion, and (2) no adequate appellate remedy exists. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). It was McBride’s burden to conclusively prove through a proper mandamus record that (1) the trial court had a legal duty to perform a non-discretionary act, (2) performance was demanded, and (3) the trial court refused to act. O’Connor v. First Court of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding). McBride did not present proof of any of these requirements in his petition and, therefore, made no showing that the trial court abused its discretion.