In re Daniel Patrick Day--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-08-00134-CR

In re Daniel Patrick Day

Original Proceeding

MEMORANDUM Opinion

Relator Daniel Patrick Day has filed a petition for writ of mandamus asserting that he pled no contest to two counts of aggravated sexual assault of a child under 14 and one count of indecency with a child and received a 25-year sentence. He filed a petition for bill of review in the trial court asserting that his no-contest plea was made under duress and extrinsic fraud. Relator appears not to have appealed his no-contest plea conviction, and his mandamus petition makes no mention of his having filed an application for writ of habeas corpus.

Relator seeks mandamus relief for the trial court to act on his bill of review, whichin essence seeks post-conviction habeas corpus relief on the ground that his plea was involuntary. See, e.g., Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) ( [A] guilty plea, to be consistent with due process of law, must be entered knowingly, intelligently, and voluntarily. To be voluntary, a guilty plea must be the expression of the defendant s own free will and must not be induced by threats, misrepresentations, or improper promises. A defendant s sworn representation that his guilty plea is voluntary constitute[s] a formidable barrier in any subsequent collateral proceedings. An applicant seeking habeas corpus relief on the basis of an involuntary guilty plea must prove his claim by a preponderance of the evidence. ) (citations omitted).

Relator s Motion for Leave to File Petition for Writ of Mandamus In Forma Paupris [sic] is granted. We use Rule 2 to suspend the requirement for the number of copies of the mandamus petition to be filed and to suspend the service requirement of Rule 9.5 and proceed to the merits. See Tex. R. App. P. 2, 9.5.

An intermediate court of appeals has no jurisdiction over post-conviction writs of habeas corpus in felony cases. See Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App. Texarkana 2005, orig. proceeding) (citing Tex. Code Crim. Proc. Ann. art. 11.07(3)(a), (b) (Vernon 2005)); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App. Eastland 2003, no pet.) (same). The Court of Criminal Appeals and lower courts have recognized that the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to [article] 11.07. Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); see Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App. Waco 2006, no pet.).

Because we have no jurisdiction over what is in effect a post-conviction habeas corpus proceeding, we dismiss Relator s petition for writ of mandamus.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray would deny the petition for writ of mandamus. A separate opinion will not issue. He notes, however, that the petitioner has sought to compel the trial court to rule on a bill of review that he filed in the trial court proceeding. The majority has recast his petition for writ of mandamus to compel a ruling on the bill of review as a petition for writ of habeas corpus. Though the majority engages in some discussion that is irrelevant to the disposition, dicta, they grant his motion to proceed as a pauper but hold we have no jurisdiction in post conviction habeas corpus proceedings. If this is a post conviction habeas corpus proceeding, something that is not even remotely referenced by the petitioner, there is no need for him to proceed as a pauper and that motion would be moot. This is because in criminal proceedings there is no filing fee required. This is just another of the myriad of problems caused by attempting to recast a litigants pleadings as well as the problems with how a proceeding is designated; civil vs. criminal. I agree, however, that the motion to proceed as a pauper is not moot because Day has sought to compel the trial court to rule on a bill of review that he has filed. And if the majority is correct in deciding to rule on Day s motion to proceed as a pauper which is inconsistent with their decision to recast the pleading as a petition for a writ of habeas corpus, their decision is in error because Day s inmate trust account has far more than enough funds to pay the filing fee, thus I would deny his motion to proceed as a pauper and require the payment of the filing fee. We have jurisdiction to review the trial court s failure to make the initial determinations necessary for a bill of review to proceed to a disposition. And the majority has been very active in compelling trial courts to make rulings on pending matters when the trial court has otherwise declined to rule or failed to rule on the matter for an extended period of time. Thus, I disagree with the majority that we do not have jurisdiction of the merits of the petition which seeks to compel the trial court to make a ruling. The problem for Petitioner Day is that the procedural vehicle he has chosen, a bill of review, is not a procedure for relief that he can use to obtain a review of the validity of his criminal conviction, including whether his plea was voluntary. While we have jurisdiction to compel the trial court to make a ruling, to obtain relief by mandamus the petitioner must show that ruling on it is a ministerial act. And I find no duty of a trial court to rule on a request for relief to which the person requesting relief is not entitled. Day has therefore not shown that the trial court must rule on his request for relief to which he is not entitled, in essence that the trial court must conduct the preliminary hearing and make the initial determinations necessary for a bill of review to proceed to review a criminal conviction. Thus he has not shown that the ruling on his bill of review is a ministerial act and therefore has not shown that he is entitled to relief by mandamus. Accordingly, I would DENY the petition for writ of mandamus rather than dismiss it for want of jurisdiction. I respectfully dissent.).

Petition dismissed

Opinion delivered and filed May 21, 2008

Do not publish

[OT06]