in Re Robert Joseph Schmitt

• Court: Court of Appeals of Texas
• Decided: August 15, 2019
• Docket: 05-19-00870-CV
• Status: Published

Opinion

DISMISSED and Opinion Filed August 15, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00870-CV

IN RE ROBERT JOSEPH SCHMITT, Relator

Original Proceeding from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81160-00

MEMORANDUM OPINION Before Justices Bridges, Osborne, and Carlyle Opinion by Justice Bridges In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule

on his “Motion to Alter or Amend the Judgment to Correct an Unauthorized and Illegal Sentence.

Relator is currently serving a twenty-year sentence for two counts of aggravated sexual assault of

a child.

On May 24, 2019, the Court dismissed for want of jurisdiction relator’s earlier petition for

writ of mandamus seeking the same relief he seeks under the current petition. See In re Schmitt,

No. 05-19-00590-CV, 2019 WL 2266661 (Tex. App.—Dallas May 28, 2019 orig. proceeding). In

that opinion, the Court held relator was attempting to raise a collateral attack on a final conviction

that would fall within the scope of a post-conviction article 11.07 writ of habeas corpus. Id. at

2019 WL 2266661, at *1; see also TEX. CODE CRIM. PROC. ANN. art. 11.07, § 1. Although relator

had not filed a copy of the motion to alter or amend the judgment, from the title and the description

of it, the Court construed the motion as an article 11.07 writ application. See Schmitt, 2019 WL 2266661, at *1. The Court dismissed the petition for want of jurisdiction because only the court

of criminal appeals has jurisdiction to order a trial court to rule on a pending article 11.07 writ

application. See id.; see also Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117–

18 (Tex. Crim. App. 2013); In re Ward, No. 12-15-00142-CR, 2015 WL 3505189, at *1 (Tex

App.—Tyler June 3, 2015, orig. proceeding) (mem. op.) (not designated for publication).

In the present case, relator has merely refiled the earlier petition for writ of mandamus and

attached a copy of the motion. The motion makes a collateral attack upon the validity of the

judgment and seeks what should be characterized as 11.07 relief. See TEX. CODE CRIM. PROC.

ANN. art. 11.07, §1; Ex parte Williams, 239 S.W.3d 859, 862 (Tex. App.—Austin 2007, no pet.)

(holding article 11.07 is exclusive remedy for applicant confined under allegedly illegal

consecutive sentences); In re Tenberg, No. 13-09-00612-CR, 2010 WL 127555 (Tex. App.—

Corpus Christi-Edinburg (Jan. 14, 2010 orig. proceeding) (denying mandamus relief for failure to

rule on motion to correct improperly cumulated sentences because improper cumulation of

sentences is subject to habeas relief).1 This Court has already held that we have no jurisdiction

over this matter. See Schmitt, 2019 WL 2266661, at *1.

We dismiss this proceeding for want of jurisdiction.

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

190870F.P05

1 In fact, the court of criminal appeals has already concluded relator’s claim should have been brought on direct appeal or in an application for article 11.07 habeas relief. See State v. Schmitt, No. PD-0594-11, 2012 WL 3996813, at *3 (Tex. Crim. App. Sep. 12, 2012).

–2–