                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                   No. 07-18-00220-CV


                           IN RE DANIEL VILLA, RELATOR


                               ORIGINAL PROCEEDING

                                     July 26, 2018

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Relator David Villa, appearing pro se, has filed a document entitled “motion for writ

of mandamus.” There he contends he is “illegally confined and restrained of his liberty”

by Lorie Davis, an official of the Texas Department of Criminal Justice, “by virtue of a

judgment.”


      Relator was arrested for driving while intoxicated (DWI) in August 2005. A May

2006 indictment enhanced the charge against him to a third degree felony based on two
1992 misdemeanor DWI convictions.1 Relator was convicted as charged and sentenced

to life in prison as a habitual offender.2


       The substance of relator’s current complaint is a contention his 2005 offense was

wrongly elevated from a misdemeanor to a felony, with the result that his sentence and

judgment are void. This error occurred, he argues, because the State failed to prove a

2001 DWI conviction that was essential under the law then in effect for the admission of

the two 1992 DWI enhancement convictions.3 Relator presents his complaint through

twelve issues.


       Despite the title of relator’s document, in this Court he seeks post-conviction relief

from a final felony conviction. Such relief, where the death penalty was not assessed, is

cognizable on a writ of habeas corpus, see Ex parte Rich, 194 S.W.3d 508, 511 (Tex.

Crim. App. 2006); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); TEX. CODE

CRIM. PROC. ANN. art. 11.01 (West 2015) (“The writ of habeas corpus is the remedy to be

used when any person is restrained in his liberty”), filed in the court of original conviction

and made returnable to the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC.

ANN. art. 11.07 § 3(a),(b) (West 2015). The Court of Criminal Appeals’ jurisdiction to grant

relief in a post-conviction habeas corpus proceeding where there is a final felony

conviction is exclusive. Padieu v. Court of Appeals of Texas, Fifth District, 392 S.W.3d


       1   TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2017).
       2   TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017).
       3  On direct appeal, relator unsuccessfully urged issues based on this argument.
Villa v. State, No. 07-06-00270-CR, 2009 Tex. App. LEXIS 6217, at *12-13 (Tex. App.—
Amarillo Aug. 10, 2009, pet. ref’d) (op. on reh’g, mem. op., not designated for publication)
(citing Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim. App. 2002)).

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115, 117 (Tex. Crim. App. 2013); Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App.

1985); TEX. CODE CRIM. PROC. ANN. art. 11.07 § 5.


       Within relator’s petition we find what we interpret as two specific complaints against

the Honorable John J. “Trey” McClendon, III, presiding judge of the convicting court, the

137th District Court of Lubbock County. First, relator seeks an order compelling Judge

McClendon to conduct a hearing to resolve disputed facts germane to relator’s improper

enhancement argument. Relator apparently unsuccessfully requested a hearing of this

nature during his 2015 subsequent habeas corpus application.4 We have no jurisdiction

now to order Judge McClendon to conduct such a hearing. See In re Morgan, No. 02-16-

00077-CV, 2016 Tex. App. LEXIS 3136, at *1 (Tex. App.—Fort Worth Mar. 28, 2016, orig.

proceeding) (mem. op.) (finding “[e]ven though [relator’s habeas] application is no longer

‘pending,’ we believe that we do not have jurisdiction over relator’s mandamus petition

because he is challenging the trial court’s express or implied rulings made during his prior

11.07 application”); In re Estes, No. 11-15-00002-CR, 2015 Tex. App. LEXIS 545 (Tex.

App.—Eastland Jan. 22, 2015, orig. proceeding) (mem. op., not designated for

publication) (same).




       4  See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4. The Court of Criminal Appeals
dismissed relator’s subsequent habeas proceeding without written order on November
18, 2015. Ex parte Villa, No. WR-29,948-10 (Tex. Crim. App. Nov. 18, 2015) (subsequent
application for writ of habeas corpus, art. 11.07, sec. 4(a)-(c)). Two later proceedings
filed by relator in the Court of Criminal Appeals also were dismissed without written order.
Ex parte Villa, No. WR-29,948-11 (Tex. Crim. App. Dec. 9, 2015) (subsequent application
for writ of habeas corpus, art. 11.07, sec. 4(a)-(c)); Ex parte Villa, No. WR-29,948-12
(Tex. Crim. App. Apr. 25, 2018) (mandamus). Records of original proceedings filed by
relator with the Court of Criminal Appeals were examined through a search of that court’s
website.      See http://search.txcourts.gov/CaseSearch.aspx?coa=coscca&s=c.            (last
examined on July 25, 2018).

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       Second, and in line with his improper enhancement argument, relator seeks our

order compelling Judge McClendon to render a judgment nunc pro tunc. The procedure

relator seeks would not, however, involve the ministerial correction of a clerical error in

the judgment. Rather, it would effectively require readjudication of his conviction. We

likewise have no authority to order Judge McClendon to undertake such a proceeding.

See Simon v. Levario, 306 S.W.3d 318, 321 (Tex. Crim. App. 2009) (“it is improper to

order a trial court to exercise its judicial (as opposed to its ministerial) function in a

particular way unless the relator has a clear right to the relief sought, i.e., the law he

invokes is definite, unambiguous, and unquestionably applies to the indisputable facts of

the case” (internal quotation marks and citation omitted)).


       Based on the foregoing, we find this Court, as an intermediate appellate court,

lacks jurisdiction to grant the relief relator seeks.


       Moreover, even if we are mistaken and the relief relator seeks is not exclusively

within the jurisdiction of the Court of Criminal Appeals, relief by mandamus is not

available.


       As for Lorie Davis, as agent of the Texas Department of Criminal Justice, the

general rule is a court of appeals has no jurisdiction to enter a writ of mandamus except

against certain categories of judges specified by statute.        TEX. GOV’T CODE ANN.

§ 22.221(b) (West Supp. 2017). An exception to this limitation exists if mandamus relief

is necessary to protect the court’s jurisdiction in an existing appeal. TEX. GOV’T CODE

ANN. § 22.221(a). Issuing a writ of mandamus against Davis is not necessary for the




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preservation of this Court’s jurisdiction over a pending appeal.        We therefore lack

mandamus jurisdiction as to Davis.


       We have mandamus jurisdiction as to Judge McClendon. TEX. GOV’T CODE ANN.

§ 22.221(b)(1). We therefore look to the merits of relator’s petition. The writ of mandamus

may issue if the record demonstrates the relator lacks an adequate remedy at law to

redress the complaint alleged and the action to be compelled is a ministerial act and not

one involving a discretionary or judicial decision. Bowen v. Carnes, 343 S.W.3d 805, 810

(Tex. Crim. App. 2011) (citing State ex rel. Young v. Sixth Judicial Dist. Court of Appeals,

236 S.W.3d 207, 210 (Tex. Crim. App. 2007)).          Relator’s complaint against Judge

McClendon fits neither requirement. He seeks reconsideration of a subject which he

raised on direct appeal, as well as by habeas corpus, and according to his present petition

the relief he seeks by mandamus concerns contested material issues.


       For those reasons, relator’s petition is dismissed.




                                                        James T. Campbell
                                                           Justice




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