In Re Malcolm C. Moffett--Appeal from 258th District Court of Polk County (per curiam)

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In The Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00580-CR _________________ IN RE MALCOLM C. MOFFETT ________________________________________________________________________ Original Proceeding ________________________________________________________________________ MEMORANDUM OPINION Malcolm C. Moffett filed a petition for writ of mandamus that asks this Court to compel the trial court to address Moffett s bill of review on a final felony conviction. Mandamus relief may be granted only when the relator shows that he has a clear and indisputable right to the act sought to be compelled. Banales v. Court of Appeals for Thirteenth Judicial Dist., 93 S.W.3d 33, 35 (Tex. Crim. App. 2002). Generally, the trial court has a duty to rule on a properly and timely filed motion. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). In this case, however, Moffett has not shown that there presently exists an active proceeding before the convicting court. The exclusive post-conviction remedy is through habeas corpus proceedings under Article 11.07 of the Texas Code of Criminal Procedure. See In re Johnston, 346 S.W.3d 1 710, 712 n.4 (Tex. App. Texarkana 2011, orig. proceeding); see also Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2010). Moreover, mandamus relief relating to a postconviction proceeding must be obtained from the Court of Criminal Appeals. In re McAfee, 53 S.W.3d 715, 718 (Tex. App. Houston [1st Dist.] 2001, orig. proceeding). We deny the petition for writ of mandamus. PETITION DENIED. PER CURIAM Opinion Delivered November 9, 2011 Do Not Publish Before Gaultney, Kreger, and Horton, JJ. 2

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