IN RE: JODY FORD MCCREARY

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Court of Appeals of Texas, Tyler.

IN RE: JODY FORD MCCREARY, RELATOR

NO. 12-17-00278-CR

Decided: September 29, 2017

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

Relator, Jody Ford McCreary, was convicted in 2011 of tampering with physical evidence, a felony offense. Acting pro se, Relator has filed a petition for writ of mandamus to compel Respondent to rule on his post-conviction application for writ of habeas corpus under Article 11.07 of the code of criminal procedure.1

Article 11.07 is the exclusive procedure available to an applicant seeking relief from a felony judgment imposing a penalty other than death. See TEX. CODE CRIM. PROC. ANN. art. 11.07 §§ 1, 5 (West 2005). Because the court of criminal appeals has exclusive Article 11.07 jurisdiction, an intermediate appellate court has no jurisdiction to rule on matters pertaining to a pending Article 11.07 application. See Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117–18 (Tex. Crim. App. 2013).

Given that Article 11.07 applies to Relator's pending application for habeas relief, and this Court has no jurisdiction to rule on any matters pertaining to a pending Article 11.07 habeas application, we are without jurisdiction to reach the merits of Relator's complaint. Accordingly, we dismiss Relator's petition for writ of mandamus for want of jurisdiction. See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 1; see also Padieu, 392 S.W.3d at 117–18; In re Ward, No. 12-15-00142-CR, 2015 WL 3505189 (Tex. App.—Tyler June 3, 2015, orig. proceeding) (mem. op., not designated for publication).

ORIGINAL PROCEEDING

ON THIS DAY came to be heard the petition for writ of mandamus filed by Jody Ford McCreary; who is the relator in Cause No. 007-1110-10-N, pending on the docket of the 7th Judicial District Court of Smith County, Texas. Said petition for writ of mandamus having been filed herein on September 13, 2017, and the same having been duly considered, because it is the opinion of this Court that it lacks jurisdiction, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed for want of jurisdiction.

FOOTNOTES

1.   Respondent is the Honorable Kerry L. Russell, judge of the 7th District Court in Smith County, Texas.

MEMORANDUM OPINION PER CURIAM