Ex Parte Barry Dwayne Minnfee ( 2011 )

NO. 07-11-0160-CV

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                     PANEL D

                                                                APRIL 27, 2011

                                            ______________________________

                                         EX PARTE BARRY DWAYNE MINNFEE,

                                                                                                                        Relator

                                            ______________________________

                                                Opinion on Original Proceeding

______________________________

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

Pending before the court is Barry Dwayne Minnfee’s application for a writ of mandamus or habeas corpus.   Though much of it is unintelligible, he does state that he “is being deprived of liberty of jail time credit proceedings.”  Thus, we construe the document as implicating the recalculation of his prison term through the application of jail time credit, and in so interpreting the petition, we deny it for the following reasons.

Minnfee is not appealing from an order denying him habeas relief.  Instead, he initiated an original proceeding with us, citing art. 11.07 of the Texas Code of Criminal Procedure as authority to do so.  However, we have no jurisdiction over art. 11.07 proceedings.  Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2010); see Watson v. State, 96 S.W.3d 497, 500 (Tex. App.–Amarillo 2002, pet. ref'd) (holding that courts of appeal lack the authority to issue original writs of habeas corpus in other than certain civil matters); see also Tex. Gov’t Code Ann. §22.221(Vernon 2004) (providing the authority to issue certain writs).  

As for mandamus relief, we lack plenary jurisdiction to issue such writs.  Rather, our authority is restricted to ordering district or county court judges to act or not viz a proceeding before them, Tex. Gov’t Code Ann. §22.221(b) (Vernon 2004); In re Hettler, 110 S.W.3d 152, 154 (Tex. App.–Amarillo 2003, orig. proceeding), or to protect our jurisdiction.  Tex. Gov’t Code Ann. §22.221(a) (Vernon 2004).  The latter requires that there be an appeal or like proceeding pending before us involving the relator.  Lesikar v. Anthony, 750 S.W.2d 338, 339 (Tex. App.–Houston [1st Dist.] 1988, orig. proceeding). We do not see where Minnfee is asking us to order either a district or county court judge to do anything.  Nor do the circumstances described in his petition encompass or implicate an appeal pending on our docket.  So we lack the jurisdiction to issue a writ of mandamus.

Therefore, we deny the petition for either a writ for habeas corpus or mandamus.

Brian Quinn

Chief Justice

uently, the State moved the trial court to revoke appellant’s probation.  She pled true to the alleged violations of the terms of her community supervision, and the trial court held a hearing.  Upon completion of the hearing, the trial court revoked appellant’s probation and sentenced her to two years in a state jail facility.  The trial court certified that appellant had the right to appeal. 

            Appellant’s counsel has now moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967), representing that he has searched the record and found no arguable grounds for reversal.  The motion and brief illustrate that appellant was informed of her right to review the appellate record and file her own brief.  So too did we inform her that any pro se response or brief she cared to file had to be filed by April 19, 2010.  To date, she has filed no such response or brief. 

            In compliance with the principles enunciated in Anders, appellate counsel discussed each phase of the case including the original plea of guilty, the revocation hearing which included appellant entering a plea of true to the motion’s allegations and the “propriety of the $1,000.00 sanction fine imposed on Appellant in the first revocation proceeding.”   However, counsel goes on to explain why the issues are without merit.  

            We have also conducted an independent review of the record to determine whether there existed reversible error and found none.  Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review of the record).   A plea of true alone is sufficient to support the finding that appellant violated her probation.  Atchison v. State, 124 S.W.3d 755, 758-59 (Tex. App.–Austin 2003, pet. ref’d). The punishment assessed was also within the range prescribed by law.  Tex. Penal Code Ann. §§37.10(c)(1) & 12.35(a) (Vernon Supp. 2009).

Accordingly, we grant counsel’s motion to withdraw and affirm the judgment of the trial court.[1]

Brian Quinn

                                                                                   Chief Justice

Do not publish.

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[1]Appellant has the right to file a pro se petition for discretionary review from this opinion.