Tamina Denise Hamid v. State ( 2012 )

Opinion issued May 3, 2012.

In The

Court of Appeals

For The

First District of Texas

NO. 01-12-00141-CR

NO. 01-12-00142-CR

____________

TAMINA DENISE HAMID, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 434th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 06-DCR-044560 & 06-DCR-044650

MEMORANDUM OPINION

          Appellant, Tamina Denise Hamid, proceeding pro se, filed a notice of appeal seeking to challenge an order signed by the Honorable Olen Underwood denying her motion to recuse the Honorable James H. Shoemake from participating in the resolution of two applications for writs of habeas corpus filed in the 434th District Court of Fort Bend County, pursuant to article 11.07, section 3(b) of the Texas Code of Criminal Procedure.  On March 20, 2012, the State filed motions to dismiss in both cause number 01-12-00141-CR and cause number 01-12-00142-CR.  Appellant did not respond to the State’s motions.  We grant the motions and dismiss the appeals.

          Appellant was convicted in trial court cause number 06-DCR-44560 of aggravated robbery and in trial court cause number 06-DCR-44650 of attempted capital murder, and she was sentenced to life imprisonment. On October 1, 2009, we affirmed her convictions in cause numbers 01-08-00710-CR and 01-08-00711-CR.  See Hamid v. State, Nos. 01-08-00710-CR, 01-08-00711-CR, 2009 WL 3152157 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, pet. ref’d) (not designated for publication). Our mandates for the two causes issued on July 12, 2010. 

On November 3, 2011, appellant filed motions to recuse the Honorable James Shoemake from any further participation in either of the trial court cause numbers, including participation in the resolution of the applications for writs of habeas corpus that she later filed on November 30, 2011.  The trial court referred the motions to the presiding judge for the administrative region, who denied the motions for recusal.  Appellant appeals the denial of her motions.

          Only the Texas Court of Criminal Appeals has jurisdiction in final post-conviction felony proceedings.  See In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding).  “Courts of appeals have no jurisdiction over post-conviction writs of habeas corpus in felony cases.  Article 11.07 contains no role for the courts of appeals.”  In re Briscoe, 230 S.W.3d 196, 196 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (internal citations omitted); see Tex. Code. Crim. Proc. Ann. art. 11.07 (West Supp. 2011).  To complain about an action or inaction of the trial court in a post-conviction felony proceeding, appellant “may seek mandamus relief from the Court of Criminal Appeals.”  Briscoe, 230 S.W.3d at 196–97; McAfee, 53 S.W.3d at 717.  Therefore, “a trial court’s ruling on a motion to recuse stemming from an 11.07 application for writ of habeas corpus is not reviewable by direct appeal to courts of appeals.”  Ex parte Banister, No. 07-09-0128-CR, 2009 WL 1978222, *1 (Tex. App.—Amarillo July 7, 2009, no pet.) (not designated for publication); see also In re Fierro, No. 03-12-00018-CV, 2012 WL 414020, *1 (Tex. App.—San Antonio Feb. 9, 2012, orig. proceeding) (holding that appellate courts have no jurisdiction over complaints about trial court’s failure to address recusal motion filed in connection with post-conviction habeas proceeding); In re Golden, No. 12-11-00181-CR, 2011 WL 3329867, *1 (Tex. App.—Tyler July 13, 2011, orig. proceeding) (not designated for publication) (same).

          Here, appellant’s felony convictions are final, and appellant is attempting to appeal from an order denying recusal in post-conviction proceedings.  We have no jurisdiction over such an appeal.  See Banister, 2009 WL 1978222, at *1; see also Tex. Code. Crim. Proc. Ann. art. 11.07, § 3; McAfee, 53 S.W.3d at 717.

Accordingly, we GRANT the State’s motions and DISMISS these appeals for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish. Tex. R. App. P. 47.2(b).