in Re Joseph Jeremy Miller ( 2021 )

Opinion issued September 16, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-21-00337-CR
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IN RE JOSEPH JEREMY MILLER, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
In 2002, a jury found relator, Joseph Jeremy Miller, guilty of the felony
offense of aggravated sexual assault of a child1 and assessed his punishment at
confinement for fifty years and a fine of $10,000.2 Appellant appealed the
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B).
2
The underlying case is State of Texas v. Joseph Jeremy Miller, Cause No. 917141,
pending in the 248th District Court of Harris County, Texas, the Honorable Hilary
Unger presiding.
conviction, and the Thirteenth Court of Appeals affirmed the conviction on August
12, 2004.3
Relator, incarcerated and acting pro se, has filed a petition for writ of
mandamus “seeking an investigation into [his] case as a whole” and asking this
Court to “read the [f]acts of [his] case and be open minded in it . . . .” Relator
states that he has filed the mandamus petition pursuant to Texas Code of Criminal
Procedure article 11.07, section 3(c).4
Relator’s mandamus petition is a collateral attack on his final felony
conviction and, as such, “fall[s] within the scope of a post-conviction writ of
habeas corpus under” Texas Code of Criminal Procedure article 11.07. See, e.g.,
In re Jones, No. 01-20-00558-CR, 2020 WL 4758431, *1 (Tex. App.—Houston
[1st Dist.] Aug. 18, 2020, orig. proceeding) (mem. op., not designated for
3
See Miller v. State, No. 13-03-042-CR, 2004 WL 1834410 (Tex. App.—Corpus
Christi–Edinburg Aug. 12, 2004, pet. ref’d) (mem. op., not designated for
publication). Pursuant to its docket equalization authority, the Supreme Court of
Texas transferred the appellant’s appeal to the Thirteenth Court of Appeals. See
TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases); see also TEX. R.
APP. P. 41.3 (“In cases transferred by the Supreme Court from one court of
appeals to another, the court of appeals to which the case is transferred must
decide the case in accordance with the precedent of the transferor court . . . .”).
4
Texas Code of Criminal Procedure article 11.07 pertains to an application for a
writ of habeas corpus “in which the applicant seeks relief from a felony judgment
imposing a penalty other than death.” See TEX. CODE CRIM. PROC. ANN. art.
11.07, § 1. “After final conviction in any felony case, the writ must be made
returnable to the Court of Criminal Appeals of Texas at Austin, Texas.” Id. § 3(a).
Section 3(c) addresses the duty of the convicting court “to decide whether there
are controverted, previously unresolved facts material to the legality of the
applicant’s confinement.” Id. § 3(c).
2
publication); see also TEX. CODE CRIM. PROC. ANN. art. 11.07. “It is well
established that only the Court of Criminal Appeals possesses the authority to grant
relief in a post-conviction habeas corpus proceeding where there is a final felony
conviction.” Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117
(Tex. Crim. App. 2013) (internal quotations omitted). Thus, we do not have
jurisdiction over relator’s mandamus petition. See In re Briscoe, 230 S.W.3d 196,
196–97 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (“Article 11.07
contains no role for the courts of appeals.”); In re McAfee, 53 S.W.3d 715, 717
(Tex. App.—Houston [1st Dist.] 2001, orig. proceeding) (“[W]hile the courts of
appeals have mandamus jurisdiction in criminal matters, only the Texas Court of
Criminal Appeals has jurisdiction in final post-conviction felony proceedings.”).
We dismiss the petition for lack of jurisdiction. All pending motions are
dismissed as moot.
PER CURIAM
Panel consists of Justices Goodman, Landau, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
3