in Re Raymond Schwarzburg

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 09-15-00190-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00190-CR ____________________

IN RE RAYMOND SCHWARZBURG _______________________________________________________ ______________

Original Proceeding ________________________________________________________ _____________

MEMORANDUM OPINION

Raymond Schwarzburg petitioned for a writ of mandamus compelling the

judge of the 221st District Court of Montgomery County, Texas, to schedule an

evidentiary hearing on Schwarzburg’s application for post-conviction writ of

habeas corpus. See generally Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015).

The courts of appeals have concurrent mandamus jurisdiction with the Court

of Criminal Appeals in some post-conviction proceedings. See Padilla v.

McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (forensic DNA testing).

But, 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.

Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim.

1 App. 2013) (orig. proceeding). In recognition of the exclusive jurisdiction of the

Court of Criminal Appeals and the mandamus authority exercised by that court in

the protection of its habeas jurisdiction, we will not act on a mandamus petition

filed to compel the trial court to act in a proceeding under Article 11.07 of the

Texas Code of Criminal Procedure. In re McAfee, 53 S.W.3d 715, 717-18 (Tex.

App.—Houston [1st Dist.] 2001, orig. proceeding); see also Tex. Code Crim. Proc.

Ann. art. 11.07. A complaint concerning the trial court’s inaction on a matter

related to a pending post-conviction application for writ of habeas corpus must be

brought by mandamus to the Court of Criminal Appeals and not to this Court.

McAffee, 53 S.W.3d at 717-18.

We lack jurisdiction to grant the relief requested by Schwarzburg because it

relates directly and exclusively to the trial court’s handling of Schwarzburg’s post-

conviction application for writ of habeas corpus. See id. Accordingly, we dismiss

the petition for writ of mandamus.

PETITION DISMISSED.

PER CURIAM

Submitted on June 23, 2015 Opinion Delivered June 24, 2015 Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ. 2