Petition for Writ of Mandamus Denied and Majority and Dissenting Opinions
filed January 24, 2013.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-12-01029-CR



                  IN RE SAMUEL ROY JACKSON, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                             183rd District Court
                             Harris County, Texas
                         Trial Court Cause No. 913043



                       DISSENTING OPINION

      Relator Samuel Roy Jackson has filed a petition for writ of mandamus in
which he asks this court to order the Honorable Vanessa Velasquez, presiding
judge of the 183rd District Court of Harris County, to conduct a hearing on various
pre-trial motions relator filed before his October 2004 trial.     These pre-trial
motions are two applications for a pre-trial writ of habeas corpus, a motion to set
aside the indictment, a motion for a written ruling, and a motion for discovery. On
October 28, 2004, relator was convicted of aggravated robbery. That conviction
was affirmed on appeal in 2005, and has been final for over seven years. Thus, the
trial court in which relator was convicted has lost plenary jurisdiction over the
case. See State v. Holloway, 360 S.W.3d 480, 484–86 (Tex. Crim. App. 2012).
Nonetheless, the trial court may re-acquire “limited” jurisdiction to ensure that a
higher court’s mandate is carried out or to perform specific functions as authorized
by statute, for example functions prescribed by the statute governing post-
conviction habeas corpus relief or by the statute providing for forensic DNA
testing.1 See Tex. Code Crim. Proc. arts. 11.07, 64.01 (West 2012); Holloway, 360
S.W.3d at 485–88.

       Relator’s pre-trial motions do not relate to enforcement of a higher court’s
mandate.      These motions do not relate to the trial court’s functions in an
application for post-conviction habeas corpus relief, a motion for forensic DNA
testing, or to any other statute prescribing a post-conviction function for the
convicting court. See Tex. Code Crim. Proc. arts. 11.07, 64.01. The respondent
does not have jurisdiction to hear or rule on relator’s pretrial motions.                   See
Holloway, 360 S.W.3d at 484–90.




1
  One of the functions relating to an application for post-conviction habeas corpus relief or a
motion for forensic DNA testing may be allowing a convicted person access to the record of the
trial that might be used in the preparation of such an application or motion. See Padieu v. Court
of Appeals of Texas, Fifth Dist., —S.W.3d—,—, No. AP-76,727, 2013 WL 85372, at *1–2 (Tex.
Crim. App. Jan. 9, 2013).
                                               2
       It is axiomatic that an appeal or original proceeding is moot when the
appellate court’s ruling cannot have any practical legal effect upon a controversy.
See Armendarez v. State, 798 S.W.2d 291, 291 (Tex. Crim. App. 1990); Ex parte
Clay, 479 S.W.2d 677, 677 (Tex. Crim. App. 1972); In re HEB Grocery Co., L.P.,
No. 14-10-00270-CV, 2010 WL 1790881, at *1 (Tex. App.—Houston [14th Dist.]
May 6, 2010, orig. proceeding [mand. denied]) (mem. op., per curiam); In re
Guerra, No. 13-08-00745-CV, 2009 WL 91743, at *1 (Tex. App.—Corpus Christi
Jan. 15, 2009, orig. proceeding); State v. Garza, 774 S.W.2d 724, 727–28 (Tex.
App.—Corpus Christi 1989, pet. ref’d); Houston Indep. School Dist. v. Houston
Teachers Assoc., 617 S.W.2d 765, 766–67 (Tex. Civ. App.—Houston [14th Dist.]
1981, no writ). If this court were to order respondent to conduct a hearing on
relator’s 2004 pretrial motions, this order would have no practical legal effect
because respondent has no jurisdiction to hear these motions and granting these
motions would have no effect on relator’s final conviction for aggravated robbery. 2
See Holloway, 360 S.W.3d at 484–90; Armendarez, 798 S.W.2d at 291; Ex parte
Clay, 479 S.W.2d at 677; In re HEB Grocery Co., L.P., 2010 WL 1790881, at *1;
Garza, 774 S.W.2d at 727–28. The “collateral consequences” and “capable of
repetition yet evading review” exceptions to the mootness doctrine do not apply in
this proceeding. See Pharris v. State, 165 S.W.3d. 681, 687–88 (Tex. Crim. App.
2005); In re Guerra, 2009 WL 91743, at *1. Thus, the issues raised by relator in

2
  Despite the potential for limited post-conviction jurisdiction in the convicting court, the
exclusive remedy from final felony convictions is a writ of habeas corpus. See Tex. Code Crim.
Proc. Ann. art. 11.07; Holloway, 360 S.W.3d at 488–89. Only the Texas Court of Criminal
Appeals has jurisdiction to grant post-conviction habeas corpus relief in felony cases. See
Holloway, 360 S.W.3d at 488–89.


                                              3
this mandamus proceeding are moot, and this court should dismiss relator’s
mandamus petition. See Armendarez, 798 S.W.2d at 291 (dismissing as moot
appeal from pretrial denial of bail after appellant was convicted in the trial court);
Ex parte Clay, 479 S.W.2d at 677 (same as Armendarez); In re HEB Grocery Co.,
L.P., 2010 WL 1790881, at *1 (dismissing as moot mandamus petition that sought
relief that court concluded would have no practical effect on any existing
controversy); In re Guerra, 2009 WL 91743, at *1 (dismissing mandamus petition
as moot because any ruling by court of appeals would have no practical legal
effect); Garza, 774 S.W.2d at 727–28 (dismissing as moot appeal in criminal case
because any ruling by court of appeals would have no practical legal effect).

      The majority denies relator’s requested relief on the merits rather than
dismissing this proceeding as moot. In doing so, the majority relies upon an
opinion that was not designated for publication and therefore has no precedential
value. See Tex. R. App. P. 47.7(a). The majority does not explain why relator’s
request is not moot. Nor does the majority cite any cases having any precedential
value that would support the proposition that relator’s request is not moot. The
majority’s analysis is contrary to well-established law, under which a case is moot
if the appellate court’s ruling cannot have any practical legal effect upon a
controversy. See Armendarez, 798 S.W.2d at 291; Ex parte Clay, 479 S.W.2d at
677; In re HEB Grocery Co., L.P., 2010 WL 1790881, at *1; In re Guerra, 2009
WL 91743, at *1; Garza, 774 S.W.2d at 727–28; Houston Teachers Assoc., 617
S.W.2d at 766–67. Relator’s petition should be dismissed as moot.




                                          4
      Because this court denies the petition on the merits rather than dismissing it
as moot, I respectfully dissent.




                                       /s/       Kem Thompson Frost
                                                 Justice


Panel consists of Justices Frost, Christopher, and Jamison. (Jamison, J., majority).
Publish — Tex. R. App. P. 47.2(b).




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