in Re Ali Mayberry

• Court: Court of Appeals of Texas
• Decided: February 25, 2020
• Docket: 01-20-00099-CR
• Status: Published

Opinion

Opinion issued February 25, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00099-CR NO. 01-20-00100-CR ——————————— IN RE ALI MAYBERRY, Relator

On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 1497306 & 1497307

MEMORANDUM OPINION

On September 6, 2016, relator, Ali Mayberry, was convicted of aggravated

sexual assault and sentenced to 40 years in prison (trial court cause number

1497306 & 1497307). Appellant appealed his conviction and we issued an opinion

affirming the conviction on December 21, 2017. See Mayberry v. State, Nos. 01- 16-00743-CR & 01-16-00744-CR, 2017 WL 6523921, at *5 (Tex. App.—Houston

[1st Dist.] Dec. 21, 2017, pet. ref’d) (mem. op., not designated for publication).

The Court of Criminal Appeals refused appellant’s petition for discretionary

review on April 11, 2018 and our mandate issued on May 18, 2018.

On January 30, 2020, relator filed a petition for writ of mandamus, arguing

that the respondent should order the court reporter to prepare a copy of the trial

proceedings below and that we should order “the respondent to correct her

arbitrary ruling and rule according to the law and order the trial court to provide

the relator with a new trial.”

Relator’s mandamus petition 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. art. 11.07. Article 11.07 provides the exclusive means to

challenge the conviction. See id.; Padieu v. Court of Appeals of Tex., Fifth Dist.,

392 S.W.3d 115, 117 (Tex. Crim. App. 2013). Although “the courts of appeals

have mandamus jurisdiction in criminal matters, only the Texas Court of Criminal

Appeals has jurisdiction in final post-conviction felony proceedings.” In re

McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig.

proceeding); see also In re Briscoe, 230 S.W.3d 196, 196 (Tex. App.—Houston

[14th Dist.] 2006, orig. proceeding) (“Article 11.07 contains no role for the courts

2 of appeals.”). Accordingly, we do not have jurisdiction over relator’s mandamus

petition.

We dismiss the petition for want of jurisdiction. We overrule any pending

motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Hightower. Do not publish. TEX. R. APP. P. 47.2(b).