in Re: Muamar Asad Sayyed ( 2019 )

DENY in Part and DISMISS in Part; Opinion Filed March 25, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00289-CV
IN RE MUAMAR ASAD SAYYED, Relator
Original Proceeding from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-8240-507
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Osborne
Relator was convicted in 2008 of theft of at least $20,000 but less than $100,000. At the
time of relator’s conviction, Benjamin Smith was the prosecutor on the case. Benjamin Smith is
now the presiding judge of the convicting court, the 380th Judicial District Court of Collin County.
In this original proceeding, relator complains that orders signed by Judge Smith are void and
should be vacated because Judge Smith prosecuted the case. Relator also maintains that his
conviction is void because the trial court granted the State leave to amend the indictment on the
day of trial by changing the victim’s name. As a result of relator’s filing of this original
proceeding, Judge Smith recused himself from the case on March 4, 2019. In the Order of Recusal,
Judge Smith asks that another judge be assigned to hear and determine pending and subsequent
matters in the case. Relator asks this Court to grant a writ of mandamus directing the trial court to
vacate the orders signed by Judge Smith, vacate the conviction, and render judgment of acquittal.
We dismiss this proceeding in part and deny the petition in part.
To the extent relator seeks vacatur of his conviction, we lack jurisdiction to provide that
relief. Such a proceeding is a collateral attack on a final conviction and, therefore, falls within the
scope of a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07. Only the Texas Court of Criminal
Appeals has jurisdiction in final, post-conviction felony proceedings. Id; Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re McAfee, 53 S.W.3d
715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). “Article 11.07 contains no role
for the courts of appeals; the only courts referred to are the convicting court and the Court of
Criminal Appeals. Should an applicant find it necessary to complain about an action or inaction
of the convicting court, the applicant may seek mandamus relief from the Court of Criminal
Appeals.” In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig.
proceeding) (citing TEX. CONST. art. V, § 5).
We deny relator’s petition to the extent he complains of post-conviction orders signed by
Judge Smith. Mandamus may issue to set aside a lower court order that is void as a matter of law
because the court lacks jurisdiction. In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana
2006, orig. proceeding) (citing State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 482 (Tex. Crim.
App. 1985)). Here, relator does not specifically state which orders relator contends are void as a
result of Judge Smith signing the orders. Relator simply states that Judge Smith has “illegally
ruled on” the “numerous writs and motions” filed by relator below. As the party seeking relief,
the relator has the burden of providing the Court with a sufficient mandamus record to establish
his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding). Rules 52.3 and 52.7 require the relator to provide “a certified or sworn copy” of
certain documents, including any order complained of, any other document showing the matter
complained of, and every document that is material to the relator’s claim for relief that was filed
in any underlying proceeding. TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1).
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Relator included various items in his appendix materials, including non-certified copies of
the trial court’s on-line docket sheet through November 2, 2018 and the signature page of a
document signed by Judge Smith on November 2, 2018 that has “Findings of Fact and Conclusions
of Law” in the text of the document’s footer. Relator does not, however, specifically complain of
the November 2 findings, and no other orders signed by Judge Smith are included in relator’s
appendix. The Clerk’s Record filed by Judge Smith includes the trial court’s on-line docket sheet
through March 6, 2019. That docket sheet shows that relator filed objections to the findings of
fact and conclusions of law on November 20, 2018 and a motion for judgment nunc pro tunc on
January 16, 2019. It appears Judge Smith has taken no action on those filings.
Based on the record before us, we are unable to determine which orders, if any, are void.
Further, to the extent relator complains of the November 2 findings, the judge appointed to replace
Judge Smith as presiding judge over this case should be given the opportunity to rule on relator’s
objections to the findings and other pending motions before mandamus relief may be granted. See
In re Coppola, 535 S.W.3d 506, 510 (Tex. 2017) (orig. proceeding) (“Due to the extraordinary
nature of the remedy, the right to mandamus relief generally requires a predicate request for action
by the respondent, and the respondent’s erroneous refusal to act”).
Accordingly, we dismiss this proceeding for want of jurisdiction as to relator’s request for
a writ of mandamus directing vacatur of his conviction and rendition of a judgment of acquittal,
and we deny relator’s petition to the extent he complains of post-conviction orders signed by Judge
Smith.
/Leslie Osborne/
190289F.P05 LESLIE OSBORNE
JUSTICE
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