in Re Michael D. Schipull

• Court: Court of Appeals of Texas
• Decided: December 13, 2004
• Docket: 03-04-00729-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00729-CV In re Michael D. Schipull

ORIGINAL PROCEEDING FROM BASTROP COUNTY M E M O R A N D U M O P I N I O N

In his pro se mandamus petition, relator Michael D. Schipull asks this Court to order the 21st District Court to act on his motions to enter judgments nunc pro tunc in Bastrop County cause numbers 10,468 and 10,753. Relator contends that the judgments erroneously contain affirmative findings regarding the use of a deadly weapon.

Mandamus is not available when there is an adequate remedy at law. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991). Relator has an adequate remedy in the form of a post-conviction writ of habeas corpus. Id.; see Ex parte Petty, 833 S.W.2d 145, 146 (Tex. Crim. App. 1992) (holding that in prosecution for unlawful possession of firearm, affirmative finding cannot be based solely on defendant's possession of firearm; granting habeas corpus relief); see also Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2004-05).

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Filed: December 13, 2004