in Re James Henry Gibson, Relator ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00298-CV
IN RE JAMES HENRY GIBSON, RELATOR
ORIGINAL PROCEEDING
August 5, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Relator, James Henry Gibson, has filed a petition for writ of mandamus by which
he seeks the issuance of a writ ordering the respondent, the Honorable Dan L. Schaap,
Judge of the 47th District Court of Randall County, Texas, to vacate judgments he
entered in trial court cause numbers 24276A and 24329A. By his petition, Gibson
presents issues of insufficiency of the evidence, denial of counsel at a critical stage of a
criminal proceeding, and ineffective assistance of counsel. Finding we lack jurisdiction,
we will dismiss Gibson’s petition.
Following Gibson’s convictions and sentencing in trial court cause numbers
24276A and 24329A, he perfected appeal to this Court. After reviewing issues of
sufficiency of the evidence, this Court found no reversible error and affirmed the
judgment of the trial court. See Gibson v. State, Nos. 07-13-00412-CR, 07-13-00413-
CR, 2014 Tex. App. LEXIS 9438, at *19 (Tex. App.—Amarillo Aug. 25, 2014, pet. ref’d.).
After Gibson’s petition for discretionary review was refused by the Texas Court of
Criminal Appeals, mandate was issued by this Court on December 23, 2014.
Consequently, Gibson’s felony convictions are final.
Analysis
The issues Gibson presents in his petition for writ of mandamus are issues that
should have been raised in Gibson’s direct appeal or in a request for post-conviction
habeas corpus relief. See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2015) (writ of
habeas corpus is remedy to be used when a person is restrained in his liberty); 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. CODE
CRIM. PROC. ANN. art. 11.07, § 3 (West 2015); 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 Gibson’s petition for writ of mandamus.1
Mackey K. Hancock
Justice
1
We note that it appears that Gibson has filed an application for post-conviction habeas corpus
relief in January. However, this application was denied by the Texas Court of Criminal Appeals without
written order. See Ex parte Gibson, No. WR-44,081-04 (Tex. Crim. App. Jan. 28, 2015).
2