Johnny Lee Harris v. State

• Court: Court of Appeals of Texas
• Decided: November 2, 2012
• Docket: 07-10-00452-CR
• Status: Published

Opinion

NO. 07-12-00440-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

NOVEMBER 2, 2012

IN RE JAMES G. MILLER, RELATOR

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ON PETITION FOR WRIT OF MANDAMUS

Relator, James G. Miller, has filed a petition for writ of mandamus by which he

seeks the issuance of a writ ordering the respondent, the Honorable Jim Bob Darnell,

Judge of the 140th District Court of Lubbock County, Texas, to vacate his May 14, 2004

Judgment on the basis that the trial court lacked jurisdiction to enter the May 14, 2004

Judgment. Finding we lack jurisdiction, we will dismiss Miller’s petition.

Background

On June 3, 2003, a Lubbock County grand jury returned a four-count indictment

against Miller. On December 8, 2003, the State opted to waive the third and fourth

counts of the indictment. On December 10, 2003, Miller was acquitted of the first and

second counts of the indictment. Following Miller’s acquittal, the State announced its

intention to prosecute Miller on the previously waived third and fourth counts of the

indictment. On April 14, 2004, Miller was found guilty of the offenses alleged in counts three 1 and four 2 of the grand jury’s indictment. Subsequently, the trial court sentenced

Miller to 99 years’ incarceration.

Following Miller’s conviction and sentence, he perfected appeal to this Court.

Finding no reversible error in the judgment of the trial court, this Court affirmed the

judgment. See Miller v. State, No. 07-04-00332-CR, 2006 Tex.App. LEXIS 2369, at *17

(Tex.App.—Amarillo Mar. 29, 2006, pet. ref’d). After Miller’s petition for discretionary

review was refused by the Texas Court of Criminal Appeals, mandate was issued by

this Court on October 18, 2006. Consequently, Miller’s felony convictions are final.

Analysis

The substance of the relief Miller seeks by mandamus is a request for post-

conviction habeas corpus relief. See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West

2005) (writ of habeas corpus is remedy to be used when a person is restrained in his

liberty); Prophet v. Hatten, No. 01-87-00729-CV, 1987 Tex.App. LEXIS 8492, at *1

(Tex.App.—Houston [1st Dist.] Oct. 8, 1987, orig. proceeding) (post-conviction claim that

convicting court lacked jurisdiction is a request for habeas corpus relief); see also Ex

parte Gray, 649 S.W.2d 640, 642 (Tex.Crim.App. 1983) (court must look to the

substance of the relief sought, rather than its nomenclature or form). Courts of appeals

have no jurisdiction over post-conviction writs of habeas corpus in felony cases. TEX.

1 Count three alleged the offense of possession of an immediate precursor with intent to manufacture a controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.124(a)(2) (West 2010). 2 Count four alleged the offense of possession of anhydrous ammonia with intent to manufacture a controlled substance. Id. § 481.124(a)(1). 2 CODE CRIM. PROC. ANN. art. 11.07, § 3 (West Supp. 2012); Ex parte Alexander, 685

S.W.2d 57, 60 (Tex.Crim.App. 1985).

Because we have no jurisdiction over what is, in effect, a post-conviction habeas

corpus proceeding, we dismiss Miller’s petition for writ of mandamus.

Mackey K. Hancock Justice