in Re John Whitson

• Court: Court of Appeals of Texas
• Decided: February 12, 2009
• Docket: 14-09-00109-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Dismissed and Opinion filed February 12, 2009

Petition for Writ of Mandamus Dismissed and Opinion filed February 12, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00109-CR

IN RE JOHN WHITSON, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M  O P I N I O N

On January 27, 2009, Relator, John Whitson, filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann '22.221 (Vernon 2004); see  also  Tex. R. App. P. 52.1.  In his petition, relator asks that this court order the respondent, the Honorable Jim Wallace, presiding judge of the 263rd District Court, to rule on his motion to review the trial record.  Relator asserts he needs a copy of the trial record to prepare an application for post-conviction writ of habeas corpus pursuant to article 11.07 of the Code of Criminal Procedure.  We do not have jurisdiction over this original proceeding and dismiss the petition.

While courts of appeals have mandamus jurisdiction in criminal matters, only the Court of Criminal Appeals has jurisdiction in final post-conviction habeas corpus proceedings.  Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008); In re Bailey, 14-06-00841-CV, 2006 WL 2827249 (Tex. App.CHouston [14th Dist.] 2006, orig. proceeding); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.CHouston [1st Dist.] 2001, orig. proceeding).  The courts of appeals have concurrent mandamus jurisdiction with the Court of Criminal Appeals in some post-conviction proceedings.  Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003).  Because relator ties his right to mandamus relief specifically to his intent to file a post-conviction application for writ of habeas corpus, we conclude we do not have jurisdiction over the complaint.  See McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992) (Court of Criminal Appeals has jurisdiction to order the trial court to rule on applicant=s post-conviction writ of habeas corpus.); In re Curry, 05-08-00064-CV, 2008 WL 311018 (Tex. App.CDallas 2008, orig. proceeding) (memo. op.) (jurisdiction lies with the Court of Criminal Appeals when relator seeks record of trial proceeding for purpose of filing post-conviction writ of habeas corpus).

Accordingly, the petition for writ of mandamus is ordered dismissed.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).