in Re Mike Mendoza

• Court: Court of Appeals of Texas
• Decided: January 27, 2015
• Docket: 01-14-01013-CR
• Status: Published

Opinion

Opinion issued January 27, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-01012-CR NO. 01-14-01013-CR ——————————— IN RE MIKE MENDOZA, JR., Relator

Original Proceedings on Petitions for Writ of Mandamus

MEMORANDUM OPINION

Relator, Mike Mendoza, Jr., has filed two pro se petitions for a writ of

mandamus, both related to his underlying felony habeas application.1 Because

1 The underlying case is Ex Parte Mike Mendoza, Jr., Cause No. 952290-B, in the 262nd Judicial District Court of Harris County, Texas, the Honorable Denise Bradley presiding, whom relator lists as the respondent in both petitions. In 2004, we affirmed appellant’s murder conviction. See Mendoza, Jr. v. The State of Texas, No. 01-03-00783-CR, 2004 WL neither petition contains certificates of service indicating that they were served on

the respondent trial court, they are subject to dismissal. See In re Davis, No. 01-

02-00822-CV, 2002 WL 1934969, at *1 (Tex. App.—Houston [1st Dist.] Aug. 22,

2002, orig. proceeding) (mem. op.) (denying a petition under TEX. R. APP. P. 9.5).

In any event, we deny the first petition, filed under appellate cause number

01-14-01012-CR. Relator seeks to compel the respondent trial court to rule on his

pending motion for forensic DNA testing, filed in May 2013 under Chapter 64 of

the Texas Code of Criminal Procedure. Because neither relator’s underlying

habeas application nor his criminal case is currently pending, the trial court had

neither a duty nor jurisdiction to rule on the free-floating motion. See In re Cash,

No. 06-04-00045-CV, 2004 WL 769473, at *1 (Tex. App.—Texarkana Apr. 13,

2004, orig. proceeding) (mem. op.) (“In general, however, [the trial court] does not

have a duty to rule on free-floating motions unrelated to currently pending actions.

In fact, it has no jurisdiction to rule on a motion when it has no plenary jurisdiction

coming from an associated case.”)

Moreover, we dismiss relator’s second mandamus petition, under appellate

cause number 01-14-01013-CR, for want of jurisdiction. Relator seeks to compel

the respondent trial court to rule on his application for a post-conviction writ of

habeas corpus, filed in 2009 under Texas Code of Criminal Procedure Article

2538280, at *6 (Tex. App.—Houston [1st Dist.] Nov. 10, 2004, no pet.) (mem. op., not designated for publication). 2 11.07. However, because relator’s underlying habeas application involves a final

post-conviction felony proceeding, it is governed by Article 11.07 of the Texas

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West

Supp. 2013). “Article 11.07 contains no role for the courts of appeals. To

complain about any action, or inaction, of the convicting court, the applicant may

seek mandamus relief from the Court of Criminal Appeals.” In re Briscoe, 230

S.W.3d 196, 196–97 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding); see

Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist.,

910 S.W.2d 481, 483 (Tex. Crim. App. 1995). Thus, we lack jurisdiction to issue

the requested writ of mandamus for relator’s article 11.07 proceeding.

To the extent relator also seeks, in his second petition, to compel the Harris

County district attorney to respond to his habeas application, we previously

dismissed relator’s prior mandamus petition seeking identical relief on December

4, 2014, for want of jurisdiction. See In re Mendoza, Jr., No. 01-14-00947-CR,

2014 WL 6853686, at *1 (Tex. App.—Houston [1st Dist.] Dec. 4, 2014, no pet.)

(citing TEX. GOV’T CODE ANN. §§ 22.221(a), (b) (West 2004)).

Accordingly, relator’s first petition for a writ of mandamus, under appellate

cause number 01-14-01012-CR, is denied. See TEX. R. APP. P. 52.8(a). Also,

relator’s second petition for a writ of mandamus, under appellate cause number 01-

14-01013-CR, is dismissed for want of jurisdiction. See id.

3 PER CURIAM Panel consists of Justices Keyes, Higley, and Brown.

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