In Re Herbert Feist v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 17, 2024
• Docket: 09-24-00118-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00118-CR __________________

IN RE HERBERT FEIST

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Original Proceeding 252nd District Court of Jefferson County, Texas Trial Cause No. 39295 __________________________________________________________________

MEMORANDUM OPINION

In a mandamus petition, Herbert Feist contends he has served the sentence

imposed in Trial Cause Number 39295 and he argues the trial court failed to perform

a ministerial duty to provide records, hold a habeas corpus hearing, and dismiss the

case. He complains that the records for Trial Cause Number 39295 were destroyed

in 2020. As mandamus relief, Feist asks that all of his previous writ applications be

re-opened, that an attorney be appointed to represent him, that he be provided case

numbers and records of all of his previous convictions, that Trial Cause Number

39295 be dismissed and that he be released from incarceration immediately.

1 Assuming at this moment Feist has no active habeas corpus proceeding on

file, this Court has original jurisdiction to consider a mandamus petition that

complains that the trial court refused to rule on a motion. Padieu v. Court of Appeals

of Tex., Fifth Dist., 392 S.W.3d 115, 116-117 (Tex. Crim. App. 2013) (orig.

proceeding). To obtain mandamus relief, the relator must show that he seeks to

compel a ministerial act involving no discretion and he has no adequate remedy at

law. In re State ex rel. Best, 616 S.W.3d 594, 599 (Tex. Crim. App. 2021) (orig.

proceeding).

Feist cited no statute or case that allows the district court to re-open Feist’s

closed post-conviction proceedings, hold a habeas corpus hearing, dismiss a criminal

case after the conviction became final, or order the Texas Department of Criminal

Justice to release Feist from prison. Article 11.07 of the Texas Code of Criminal

Procedure provides the exclusive method for challenging a final felony conviction

in a non-death penalty case. See Tex. Code Crim. Proc. Ann. art. 11.07, § 5. The

authority to grant relief under article 11.07 is vested exclusively in the Court of

Criminal Appeals. See Ex parte Ybarra, 629 S.W.2d 943, 945-46 (Tex. Crim. App.

1982). When article 11.07 provides an adequate remedy at law, an intermediate

appellate court cannot grant mandamus relief. Ater v. Eighth Court of Appeals, 802

S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding).

2 “Once general jurisdiction has expired, and absent direction from a higher

court, a trial court can act only if, and to the extent, it is authorized to do so by a

specific statutory source.” Skinner v. State, 305 S.W.3d 593, 594 (Tex. Crim. App.

2010). Feist failed to identify the specific statutory source that gives the trial court

the authority to implement the actions that Feist claims the trial court has a

ministerial duty to perform.

Furthermore, Feist provided no supporting documentation to show that he

asked the trial court to perform specific ministerial acts that the trial court refused to

do. Feist neither directs this Court to a new motion that Feist has properly filed in

Trial Cause Number 39295, nor does he explain why the trial court has a ministerial

duty to appoint counsel and create records relating to Feist’s previous convictions.

We deny the petition for a writ of mandamus. See Tex. R. App. P. 52.8(a).

PETITION DENIED.

PER CURIAM

Submitted on April 16, 2024 Opinion Delivered April 17, 2024 Do Not Publish

Before Horton, Johnson and Wright, JJ.