




Petition for Writ of Mandamus Dismissed and Opinion filed January 27,
2009







Petition
for Writ of Mandamus Dismissed and Opinion filed January 27, 2009.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-08-01124-CR
NO. 14-08-01125-CR
____________
 
IN RE KENNETH SHERMAN, Relator
 
 

 
ORIGINAL
PROCEEDING
WRIT OF MANDAMUS
 

 
M E M O R
A N D U M   O P I N I O N
On
December 10, 2008, Relator, Kenneth Sherman, filed a petition for writ of
mandamus in this court.  See Tex.
Gov=t Code Ann '22.221 (Vernon 2004); see also Tex. R. App. P. 52.1.  In his petition, relator  asks that
this court order the trial court to make findings on his post-conviction writ
of habeas corpus filed pursuant to article 11.07 of the Code of Criminal
Procedure.  We do not have jurisdiction over this original proceeding and
dismiss the petition.




While
courts of appeals have mandamus jurisdiction in criminal matters, only the
Court of Criminal Appeals has jurisdiction in final post-conviction habeas
corpus proceedings.  Tex. Code Crim.
Proc. Ann. art. 11.07 (Vernon Supp. 2008); In re Bailey, 14-06-00841-CV,
2006 WL 2827249 (Tex. App.CHouston [14th Dist.] 2006, orig. proceeding); In re McAfee,
53 S.W.3d 715, 717 (Tex. App.CHouston [1st Dist.] 2001, orig. proceeding).  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).  However, if the relator has filed a
writ of habeas corpus pursuant to article 11.07 of the Code of Criminal
Procedure, original mandamus jurisdiction lies with the Court of Criminal
Appeals.  See Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App.
2000) (writ of mandamus conditionally granted to direct the respondent to
forward the post-conviction writ to the Court of Criminal Appeals.); 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.).
Accordingly,
the petition for writ of mandamus is ordered dismissed.
PER CURIAM
 
Panel consists of Justices Frost,
Brown, and Boyce.
Do Not Publish C Tex. R.
App. P. 47.2(b).

