in Re Jerry J. Miller

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 13-14-00583-CR
• Status: Published

Opinion

NUMBER 13-14-00583-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JERRY J. MILLER

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam1

Relator, Jerry J. Miller, proceeding pro se, filed a petition for writ of mandamus in

the above cause on October 7, 2014, seeking general relief regarding his judgment of

conviction. This Court previously affirmed relator’s conviction on direct appeal. See Miller

v. State, No. 13-03-00042-CR, slip op. ¶ 1 (Tex. App.—Corpus Christi Aug. 12, 20014,

writ ref’d) (not designated for publication) (mem. op.), available at

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=110e70d5-fc7b-4f16-8355-

cbc947ecd84c&coa=coa13&DT=Opinion&MediaID=3b05f1db-7794-4360-b6f6-ebd14a367d2b.

To be entitled to mandamus relief, the relator must show: (1) that he has no

adequate remedy at law, and (2) that what he seeks to compel is a ministerial act. In re

State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If

the relator fails to meet both of these requirements, then the petition for writ of mandamus

should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of App. at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). It is relator’s burden to

properly request and show entitlement to mandamus relief. Barnes v. State, 832 S.W.2d

424, 426 (Tex. App.–Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant

for a writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

In addition to other requirements, relator must include a statement of facts supported by

citations to “competent evidence included in the appendix or record,” and must also

provide “a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the appendix or record.” See generally TEX. R. APP. P. 52.3.

In this regard, it is clear that relator must furnish an appendix or record sufficient to support

the claim for mandamus relief. See id. R. 52.3(k) (specifying the required contents for the

appendix); R. 52.7(a) (specifying the required contents for the record). The petition for

writ of mandamus in this case fails to comply with these requirements.

Although courts of appeals have jurisdiction in criminal matters, only the Texas

Court of Criminal Appeals has jurisdiction over matters related to final post-conviction

felony proceedings. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (West, Westlaw

through 2013 3d C.S.); Padieu v. Ct. of App. of Tex., Fifth Dist., 392 S.W.3d 115, 117

2 (Tex. Crim. App. 2013) (orig. proceeding) (“It is well established that only the Court of

Criminal Appeals possesses the authority to grant relief in a post-conviction habeas

corpus proceeding where there is a final felony conviction.”); Board of Pardons & Paroles

ex rel. Keene v. Ct. of App. of Tx., Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App.

1995) (“Article 11.07 provides the exclusive means to challenge a final felony conviction.

Jurisdiction to grant post-conviction habeas corpus relief on a final felony conviction rests

exclusively with [the Court of Criminal Appeals].”). The Court of Criminal Appeals'

exclusive jurisdiction under article 11.07 does not necessarily, however, divest the courts

of appeals of jurisdiction to decide the merits of a mandamus petition when the relator

has no article 11.07 application pending. See Padieu, 392 S.W.3d at 117–18.

The Court, having examined and fully considered the petition for writ of mandamus,

which is supported by neither a record nor an appendix, is of the opinion that relator has

not established that we possess jurisdiction over this original proceeding. See Padieu,

392 S.W.3d at 117–18. Accordingly, relator’s petition for writ of mandamus is

DISMISSED for lack of jurisdiction. See TEX. R. APP. P. 52.8(a).

PER CURIAM

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

Delivered and filed the 14th day of October, 2014.