Daniel Marcuccilli v. Texas Board of Pardons and Paroles and TDCJ, Parole Division

IN THE

TENTH COURT OF APPEALS

No. 10-03-00143-CV

Daniel Marcuccilli,

                                                                      Appellant

 v.

Texas Board of Pardons and Paroles

and TDCJ, Parole Division, [1]

                                                                      Appellees

From the 77th District Court

Limestone County, Texas

Trial Court # 26,505-A

MEMORANDUM Opinion

        This appeal concerns the dismissal of a petition for writ of mandamus in the district court for want of jurisdiction.  We will affirm.

1.    Dismissal for Want of Jurisdiction.  In his first issue, Appellant contends that the trial court erred in granting the Texas Board of Pardons and Paroles’ motion to dismiss Appellant’s petition for writ of mandamus for want of jurisdiction.  The Board’s motion contended that Appellant’s petition constituted an attack on Appellant’s final felony conviction and that only the Court of Criminal Appeals had jurisdiction to grant Appellant relief by way of the writ of habeas corpus.  See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004). Appellant contends on appeal that he seeks only to compel compliance with statutes governing parole revocation, and does not allege a constitutional deprivation, to which habeas corpus is limited. Appellant’s writ prayed, on constitutional and statutory grounds, for Appellant’s release from confinement and other relief contingent upon his release.  Only the Court of Criminal Appeals has jurisdiction to grant Appellant’s release, by habeas corpus.  See id. § 5; Bd. of Pardons & Paroles ex rel. Keene v. Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding); see also Ex parte Geiken, 28 S.W.3d 553, 556 (Tex. Crim. App. 2000).  We overrule Appellant’s first issue.

2.    Opportunity to Amend.  In Appellant’s second issue, he contends that the trial court erred in not allowing him to amend his petition before dismissing it.  Appellant preserved this complaint in his motion for new trial. There, he contended that he should be allowed to amend his petition to delete his prayer that his sentence be allowed to discharge after his release.  This amendment would not cure the jurisdictional defect in Appellant’s petition, which is that he prays that he be released from confinement.  See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). We overrule Appellant’s second issue.

3.    Notice. Appellant contends that the trial court erred in not giving him three days’ notice of the hearing on the Board’s motion.  See Tex. R. Civ. P. 21.  Appellant does not suggest that he presented this complaint to the trial court, and does not present a reporter’s record of the hearing.  By failing to present his complaint in the trial court, he waived it. See Tex. R. App. 33.1(a); Walker v. Gonzales County Sheriff’s Dep’t, 35 S.W.3d 157, 160 (Tex. App.—Corpus Christi 2000, pet. denied).  We overrule Appellant’s third issue.

      Having overruled Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Opinion delivered and filed August 11, 2004

Affirmed

[CV06]

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[1]  Although named in Appellant’s suit, the Department of Criminal Justice did not answer, did not join the Board of Pardons and Paroles’ motion to dismiss, and has not filed a brief.