
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-04-00193-CV


In re Joe Pena, Sr.





ORIGINAL PROCEEDING FROM MILAM COUNTY



M E M O R A N D U M   O P I N I O N


In July 1998, relator Joe Pena, Sr., was convicted for aggravated sexual assault and
sentenced to thirty years in prison.  One year later, Pena filed a pro se notice of appeal asserting that
he wanted to appeal his conviction but that his trial attorney failed to act on this request.  Because
the pro se notice of appeal was untimely, this Court dismissed the appeal for want of jurisdiction. 
In the court's opinion, Pena was advised to seek relief by way of a post-conviction habeas corpus
proceeding.  See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2004).
Pena has now filed this petition for writ of mandamus asking the Court to order the
20th Judicial District Court to "reindict relator and for a rehearing on this above cause or for an
acquittal."  He complains that the attorney appointed to represent him at the hearing on the State's
motion to adjudicate guilt had represented the State earlier in the prosecution, a fact allegedly
brought to the trial court's attention.  He also complains of the improper admission of evidence.
Mandamus relief is available in criminal cases only when the act sought to be
compelled is purely ministerial and there is no adequate remedy at law.  State ex rel. Hill v. Court
of Appeals, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001).  The instant petition satisfies neither
requisite.  The merits of the allegations made in the petition are not beyond dispute, but instead
require judicial determination.  Id.  Moreover, the procedure outlined in article 11.07 is the exclusive
felony post-conviction remedy in the courts of this State.  Ex parte Adams, 768 S.W.2d 281, 287
(Tex. Crim. App. 1989); McBride v. State, 114 S.W.3d 556, 557 Tex. App.--Austin 2002, no pet.). 	The petition for writ of mandamus is denied.  See Tex. R. App. P. 52.8(a).


				__________________________________________
				Bea Ann Smith, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Filed:   April 13, 2004
