in Re Kenneth Sherman

• Court: Court of Appeals of Texas
• Decided: January 27, 2009
• Docket: 14-08-01124-CR
• Status: Published

Opinion

Petition for Writ of Mandamus Dismissed and Opinion filed January 27, 2009

Petition for Writ of Mandamus Dismissed and Opinion filed January 27, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-01124-CR

NO. 14-08-01125-CR

IN RE KENNETH SHERMAN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On December 10, 2008, Relator, Kenneth Sherman, 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 trial court to make findings on his post-conviction writ of habeas corpus filed 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).  However, if the relator has filed a writ of habeas corpus pursuant to article 11.07 of the Code of Criminal Procedure, original mandamus jurisdiction lies with the Court of Criminal Appeals.  See Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000) (writ of mandamus conditionally granted to direct the respondent to forward the post-conviction writ to the Court of Criminal Appeals.); 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.).

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

PER CURIAM

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex.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