in Re Donald R. Brown

IN THE
TENTH COURT OF APPEALS
No. 10-11-00241-CR
IN RE DONALD R. BROWN
Original Proceeding
MEMORANDUM OPINION
In this original proceeding, Relator Donald R. Brown seeks mandamus relief
pertaining to his article 11.07 post-conviction habeas corpus proceeding. Brown has
alleged ineffective assistance of counsel in his article 11.07 post-conviction habeas
corpus proceeding, as the trial court’s September 1, 2010 order attached to the
mandamus petition orders attorney David Barron to file an affidavit responding to
Brown’s allegations within sixty days. Brown seeks mandamus relief against the
respondent trial judge on the allegation that the trial judge has failed to timely rule, or
has refused to rule, on Brown’s motion to compel Barron to file the affidavit.
Because Brown’s complaint in his mandamus petition pertains to his article 11.07
post-conviction habeas corpus proceeding, we initially question our jurisdiction to
address Brown’s complaint. Very recently, the Houston Fourteenth District Court of
Appeals addressed this very issue and dismissed the mandamus proceeding for lack of
jurisdiction. In re Ray, No. 14-11-00509-CR, 2011 WL 2462554 (Tex. App.—Houston
[14th Dist.] June 21, 2011, orig. proceeding) (mem. op., not designated for publication).
Only the Court of Criminal Appeals has jurisdiction in final post-
conviction habeas corpus proceedings. TEX. CODE CRIM. PROC. ANN. art.
11.07; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App.
1991); Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth
Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (holding that article 11.07
provides the exclusive means to challenge a final felony conviction). This
court lacks jurisdiction to grant mandamus relief in matters related to a
post-conviction writ application. See McCree v. Hampton, 824 S.W.2d 578,
579 (Tex. Crim. App. 1992) (Court of Criminal Appeals has jurisdiction to
order the trial court to rule on applicant’s post-conviction writ of habeas
corpus.); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.]
2001, orig. proceeding) (concluding that intermediate courts of appeals
have no authority to issue writs of mandamus in criminal [ ] matters
pertaining to article 11.07 writs).
Id.
Because the relief that Brown seeks relates to post-conviction habeas corpus
relief, we do not have jurisdiction over this original proceeding. See id. (citing In re
Trevino, 79 S.W.3d 794, 795 (Tex. App.—Corpus Christi 2002, orig. proceeding) (holding
that court of appeals did not have jurisdiction to issue mandamus directing district
court to forward copy of record to inmate for purposes of pursuing post-conviction
relief)). Accordingly, we dismiss the petition for writ of mandamus.
REX D. DAVIS
Justice
In re Brown Page 2
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition dismissed
Opinion delivered and filed July 13, 2011
Do not publish
[OT06]
In re Brown Page 3