In Re: Robert J. Schmitt v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 14, 2024
• Docket: 05-24-01300-CR
• Status: Published

Opinion

DISMISS and Opinion Filed November 14, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-01300-CR

IN RE ROBERT J. SCHMITT, Relator

Original proceeding from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81160-00

MEMORANDUM OPINION Before Justices Pedersen, III, Smith, and Garcia Opinion by Justice Garcia Before the Court is relator’s document styled, “Motion, Writ of Procedendo.”

In the document, relator asks that we find the trial court abused its discretion by

ordering relator’s two twenty-year sentences to run consecutively, and he asks that

we “delete the unlawful and illegal cumulation order so the sentences run

concurrently.” We dismiss this proceeding for want of jurisdiction.

In 2001, relator was convicted of two counts of aggravated sexual assault with

a child. The trial court sentenced him to twenty years’ imprisonment on each count,

and the court ordered the sentences be served consecutively. Relator appealed, and

the Tyler Court of Appeals affirmed the judgment. Schmitt v. State, No. 12-01- 00306-CR, 2003 WL 22411210, at *1 (Tex. App.—Tyler Oct. 22, 2003, no pet.)

(mem op., not designated for publication). The Tyler Court’s opinion does not show

that relator raised the issue of the cumulation order on appeal. Id.

As this Court has repeatedly explained to relator, these types of proceedings

are collateral attacks upon the validity of a final judgment of conviction for a felony.

Only the Texas Court of Criminal Appeals has authority to grant post-conviction

relief from a final felony conviction. In re Schmitt, No. 05-19-00870-CV, 2019 WL

3821898 (Tex. App.—Dallas Aug. 15, 2019, orig. proceeding) (mem op., not

designated for publication); In re Schmitt, No. 05-19-00590-CV, 2019 WL 2266661

(Tex. App.—Dallas May 28, 2019, orig. proceeding) (mem op., not designated for

publication).

This Court has no jurisdiction to grant relator the relief he seeks. See TEX.

CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (“After final conviction in any felony case,

the writ must be made returnable to the Court of Criminal Appeals of Texas at

Austin, Texas.”); Ater v. Eighth Ct. of Appeals, 802 S.W.2d 241, 243 (Tex. Crim.

App. 1991) (orig. proceeding) (“We are the only court with jurisdiction in final post-

conviction felony proceedings.”).

–2– We dismiss relator’s “Motion, Writ of Procedendo” for want of jurisdiction.

/Dennise Garcia/ DENNISE GARCIA JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b)

241300F.U05

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