DISMISS; and Opinion Filed April 7, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00371-CV

                                IN RE JUAN MURRAY, Relator

                  Original Proceeding from the 265th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F0055585-MR

                              MEMORANDUM OPINION
                          Before Justices FitzGerald, Francis, and Lewis
                                    Opinion by Justice Lewis


       Relator filed this petition for writ of mandamus seeking to compel the trial court to grant

his motion for nunc pro tunc judgment and to order the District Clerk to produce and file a nunc

pro tunc judgment. Relator argues that at the time of his October 25, 2001 sentencing, the trial

court orally imposed a sentence of four years for aggravated robbery, but the written sentence

improperly reflected that he was to be confined for forty years. Relator has moved for entry of

judgment nunc pro tunc in the trial court and argues that granting the motion and correcting his

written sentence is a ministerial matter that this Court may order the trial court to undertake.

Given the date of relator’s sentencing, relator’s allegations amount to a claim that he has now

been held beyond the term of confinement that the trial court imposed. The Court concludes that

it lacks jurisdiction over such a claim and so dismisses the petition for want of jurisdiction.
       Ordinarily a claim that a judgment of conviction is inaccurate and must be corrected

should be resolved via a motion nunc pro tunc. Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex.

Crim. App. 2004); Ex parte Pena, 71 S.W.3d 336, 336-37 (Tex. Crim. App. 2002). A writ of

habeas corpus does not lie to correct an inaccurate criminal judgment. Ex parte Patterson, 141

S.W.2d 319, 323 (1940) (a mere irregularity in a judgment may be corrected by nunc pro tunc

proceeding, but “the matter was not a subject for the granting of the writ of habeas corpus”)

(citing Ex parte Beeler, 53 S.W. 857, 857 (1899)). When a trial court fails to respond to a proper

motion for entry of judgment nunc pro tunc, the petitioner may seek relief in the court of appeals

by way of petition for writ of mandamus. Ybarra, 149 S.W.3d at 149.

       However, a claim that a petitioner is being held beyond the length of the sentence that

was assessed against him is a claim that he is being illegally confined in violation of his

constitutional rights and should be raised by a petition for writ of habeas corpus under Article

11.07 of the Texas Code of Criminal Procedure, even if the claim is one that would be

susceptible to nunc pro tunc correction during the time of the petitioner’s legally proper

confinement. See Ex parte Deeringer, 210 S.W.3d 616, 618 n.7 (Tex. Crim. App. 2006);

Ybarra, 149 S.W.3d at 148 n.2. This Court may not address such complaints. Ater v. Eighth

Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (“What the court of appeals tried

to do was treat the original mandamus petition as a writ of habeas corpus. We are the only court

with jurisdiction in final post-conviction felony proceedings.”). While the courts of appeals have

concurrent mandamus jurisdiction with the Court of Criminal Appeals in some post-conviction

proceedings, Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex. Crim. App. 2003) (forensic DNA

testing), only the Court of Criminal Appeals has jurisdiction in final post-conviction habeas

corpus proceedings. TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2010); In re Turk, No.

14-09-00129-CR, 2009 WL 396197, at *1 (Tex. App.—Houston [14th Dist.] Feb. 19, 2009, no

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pet.) (mem.op.); In re Bailey, No. 14-06-00841-CV, 2006 WL 2827249, at *1 (Tex. App.—

Houston [14th Dist.] 2006, orig. proceeding) (mem. op.); In re McAfee, 53 S.W.3d 715, 717

(Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). “Article 11.07 contains no role for the

courts of appeals; the only courts referred to are the convicting court and the Court of Criminal

Appeals.” In re McAfee, 53 S.W.3d at 718.

        While the relator has asserted his claim in the trial court in the form of a nunc pro tunc

motion, the true nature of relator’s complaint in the trial court is that he has been held beyond the

period of his sentence and is being illegally confined. This Court does not have jurisdiction over

any matters related to such complaints; they must be raised with the Court of Criminal Appeals.

Accordingly, the Court DISMISSES relator’s complaint for want of jurisdiction.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE


140371F.P05




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