in Re: Glenn Lacy Durham

• Court: Court of Appeals of Texas
• Decided: June 23, 2009
• Docket: 13-09-00346-CR
• Status: Published

Opinion

NUMBER 13-09-00346-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: GLENN LACY DURHAM

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides Per Curiam Memorandum Opinion1

Relator, Glenn Lacy Durham, has filed a pro se petition for writ of mandamus in this

Court, complaining generally the respondent, the Honorable J. Manuel Banales, the

presiding judge of the 105th District Court of Kleberg County, Texas, has committed error

in dismissing relator’s “Motion to Set Aside Indictment” for want of jurisdiction.

We affirmed relator’s conviction for murder and first degree felony injury to a child

on direct appeal. See Durham v. State, No. 13-99-00045-CR, 2001 Tex. App. LEXIS 1180,

at *2 (Tex. App.–Corpus Christi Feb. 22, 2001, pet. ref’d) (en banc). Relator's petition for

1 See T EX . R . A PP . P . 5 2 .8 (d ) (“W hen denying relief, the court m ay hand dow n an opinio n but is not required to do so.”); T EX . R . A PP . P . 47.4 (distinguishing opinions and m em orandum opinions). writ of mandamus constitutes a collateral attack on his conviction. Such an attack 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 (Vernon Supp.

2008). While courts of appeals have mandamus jurisdiction in criminal matters, only the

Texas Court of Criminal Appeals has jurisdiction in final post-conviction felony proceedings.

See id. art. 11.07 § 3; 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). The Court, having examined and fully considered the

petition for writ of mandamus, is of the opinion that we lack jurisdiction to consider this

matter. Therefore, the petition for writ of mandamus is DISMISSED for want of jurisdiction.

See TEX . R. APP. P. 52.8(a).

PER CURIAM

Do not publish. See TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed this 23rd day of June, 2009.