in Re Tommy Joe Kelley

• Court: Court of Appeals of Texas
• Decided: August 7, 2018
• Docket: 03-18-00515-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00515-CV

In re Tommy Joe Kelley

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Tommy Joe Kelley has filed a “Writ of Error Coram Nobis.” Looking to the

substance of Kelley’s pleading, rather than its title or form, we construe his pleading as a petition

for writ of error coram nobis. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601

(Tex. 1999) (courts look to substance of pleading rather than its form or caption to determine its

nature).

The purpose of a writ of error coram nobis is to bring before the court rendering

the judgment matters of fact which, if known at the time the judgment was rendered, would have

prevented its rendition. Ex parte McKenzie, 29 S.W.2d 771, 772 (Tex. Crim. App. 1930). The

Texas Court of Criminal Appeals has long held that this common-law writ has no application in

this state. See Ex parte Massey, 249 S.W.2d 599, 601 (Tex. Crim. App. 1952); In re Johnson,

No. 03-16-00277-CV, 2016 WL 1756707 (Tex. App.—Austin Apr. 27, 2016, orig. proceeding)

(mem. op.).

The habeas corpus procedure set out in article 11.07 of the Code of Criminal

Procedure provides the exclusive remedy for felony post-conviction relief in Texas state court. See Tex. Code Crim. Proc. art. 11.07, §§ 3(a), 5. Article 11.07 vests complete jurisdiction over

post-conviction relief from final felony convictions in the Texas Court of Criminal Appeals.

See id. § 3(a); Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993); In re Wood, No.

03-16-000651-CV, 2016 WL 6575240, at *1 (Tex. App.—Austin Nov. 2, 2016, orig.

proceeding) (mem. op.).

Accordingly, we dismiss Kelley’s petition for want of jurisdiction.

________________________________________________ Bob Pemberton, Justice

Before Chief Justice Rose, Justices Pemberton and Field

Filed: August 7, 2018