in Re James Henry Gibson, Relator

• Court: Court of Appeals of Texas
• Decided: August 5, 2015
• Docket: 07-15-00298-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00298-CV

IN RE JAMES HENRY GIBSON, RELATOR

ORIGINAL PROCEEDING

August 5, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Relator, James Henry Gibson, has filed a petition for writ of mandamus by which

he seeks the issuance of a writ ordering the respondent, the Honorable Dan L. Schaap,

Judge of the 47th District Court of Randall County, Texas, to vacate judgments he

entered in trial court cause numbers 24276A and 24329A. By his petition, Gibson

presents issues of insufficiency of the evidence, denial of counsel at a critical stage of a

criminal proceeding, and ineffective assistance of counsel. Finding we lack jurisdiction,

we will dismiss Gibson’s petition.

Following Gibson’s convictions and sentencing in trial court cause numbers

24276A and 24329A, he perfected appeal to this Court. After reviewing issues of

sufficiency of the evidence, this Court found no reversible error and affirmed the judgment of the trial court. See Gibson v. State, Nos. 07-13-00412-CR, 07-13-00413-

CR, 2014 Tex. App. LEXIS 9438, at *19 (Tex. App.—Amarillo Aug. 25, 2014, pet. ref’d.).

After Gibson’s petition for discretionary review was refused by the Texas Court of

Criminal Appeals, mandate was issued by this Court on December 23, 2014.

Consequently, Gibson’s felony convictions are final.

Analysis

The issues Gibson presents in his petition for writ of mandamus are issues that

should have been raised in Gibson’s direct appeal or in a request for post-conviction

habeas corpus relief. See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2015) (writ of

habeas corpus is remedy to be used when a person is restrained in his liberty); Ex parte

Gray, 649 S.W.2d 640, 642 (Tex. Crim. App. 1983) (court must look to the substance of

the relief sought, rather than its nomenclature or form). Courts of appeals have no

jurisdiction over post-conviction writs of habeas corpus in felony cases. TEX. CODE

CRIM. PROC. ANN. art. 11.07, § 3 (West 2015); Ex parte Alexander, 685 S.W.2d 57, 60

(Tex. Crim. App. 1985).

Because we have no jurisdiction over what is, in effect, a post-conviction habeas

corpus proceeding, we dismiss Gibson’s petition for writ of mandamus.1

Mackey K. Hancock Justice

1 We note that it appears that Gibson has filed an application for post-conviction habeas corpus relief in January. However, this application was denied by the Texas Court of Criminal Appeals without written order. See Ex parte Gibson, No. WR-44,081-04 (Tex. Crim. App. Jan. 28, 2015).