in Re: Jody Ford McCreary ( 2013 )

NO. 12-13-00292-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
JODY FORD MCCREARY, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
Pursuant to a plea bargain, Relator Jody Ford McCreary pleaded guilty to tampering with
physical evidence, a third degree felony with one enhancement, and was sentenced to
imprisonment for twelve years. Relator contends in this proceeding that the trial court did not
follow the plea bargain in assessing his punishment, but also did not allow him to withdraw the
“plea bargain” and proceed to trial. He requests a writ of mandamus directing the trial court to
withdraw the “plea bargain” and proceed to a jury trial on the original charge.
Relator attempted to appeal his conviction to this court, but his notice of appeal was
untimely. Accordingly, we dismissed the appeal for want of jurisdiction more than two years
ago, and Relator did not file a petition for discretionary review. See McCreary v. State, No. 12-
11-00311-CR, 2011 WL 4971606, at *1 (Tex. App.–Tyler Oct. 19, 2011, no pet.) (mem. op., not
designated for publication). Thus, the conviction is final.
A writ of habeas corpus is the exclusive means to challenge a final felony conviction.
TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3 (West Supp. 2013); Bd. of Pardons & Paroles ex
rel. Keene v. Eighth Dist. Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995).
Only the court of criminal appeals has jurisdiction to grant postconviction habeas relief from a
final conviction. See Keene, 910 S.W.2d at 483. Accordingly, we dismiss Relator’s mandamus
petition for want of jurisdiction.
Opinion delivered December 12, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 12, 2013
NO. 12-13-00292-CR
JODY FORD MCCREARY,
Relator
V.
HON. KERRY L. RUSSELL,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed
by JODY FORD MCCREARY, who is the relator in Cause No.007-1110-10, pending on the
docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of
mandamus having been filed herein on September 18, 2013, and the same having been duly
considered, because it is the opinion of this Court that it does not have jurisdiction of the
petition, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for
writ of mandamus be, and the same is, hereby DISMISSED FOR WANT OF JURISDICTION.
By per curiam opinion.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.