in Re Brett David Bogus ( 2020 )

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed
March 26, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00196-CR
IN RE BRETT DAVID BOGUS, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
176th District Court
Harris County, Texas
Trial Court Cause No. 1433472-A
MEMORANDUM OPINION
On December 23, 2019, relator Brett David Bogus filed a petition for writ of
mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App.
P. 52. In the petition, relator complains that the Honorable Nikita V. Harmon,
presiding judge of the 176th District Court of Harris County, has not appointed
counsel or an investigator in a habeas corpus proceeding.
Relator filed a post-conviction application for habeas corpus in the trial court,
which forwarded the application to the Texas Court of Criminal Appeals. On
November 20, 2019, the Court of Criminal Appeals issued an order, remanding the
application to the trial court to complete an evidentiary investigation and enter
findings of fact and conclusions of law. See Ex parte Bogus, No. WR-90,434-01,
2019 WL 6139093 (Tex. Crim. App. Nov. 20, 2019) (order, not designated for
publication). The Court of Criminal Appeals further directed that the issues shall be
resolved within 90 days of the court's order and a supplemental transcript containing
all affidavits and interrogatories or the transcription of the court reporter's notes from
any hearing or deposition and the trial court's supplemental findings of facts and
conclusions of law be forwarded to that court within 120 days of the order. Id.
Relator’s petition makes various complaints regarding actions or inactions of
the trial court, the court coordinator, and the district clerk in his pending post-
conviction habeas proceeding. We have no jurisdiction to grant the relief requested
by relator with respect to a pending article 11.07 writ. See Padieu v. Court of Appeals
of Tex., Fifth Dist., 392 S.W.3d 115, 117–18 (Tex. Crim. App. 2013) (indicating that
the Texas Court of Criminal Appeals has exclusive jurisdiction when an article 11.07
application is pending). We have no authority to issue writs of mandamus in criminal
law matters pertaining to proceedings under article 11.07. In re McAfee, 53 S.W.3d
715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Relator
previously filed a similar petition for writ of mandamus that this court dismissed for
lack of jurisdiction. In re Bogus, No. 14-19-01007-CR, 2020 WL 372893 (Tex.
App.—Houston [14th Dist.] Jan. 23, 2020, orig. proceeding) (per curiam) (mem. op.,
not designated for publication).
2
Relator argues that this court has concurrent jurisdiction with the Court of
Criminal Appeals to compel a trial court to appoint counsel for relator, citing Padilla
v. McDaniel, 122 S.W.3d 805 (Tex. Crim. App. 2003) (orig. proceeding). In Padilla,
the Court of Criminal Appeals held that the court of appeals had jurisdiction of a
petition for writ of mandamus seeking to compel the trial court to appoint counsel to
represent the relator in a motion for forensic DNA testing as provided for by article
64.01 of the Texas Code of Criminal Procedure. Id. at 806–08. Padilla does not
apply here because the record does not show that relator has filed or is seeking
counsel for a motion for forensic DNA testing. See In re Jones, No. 05-16-00107-
CV, 2016 WL 620113, at *1 (Tex. App.—Dallas Feb. 16, 2016, orig. proceeding)
(mem. op.).
Accordingly, we dismiss relator’s petition for writ of mandamus for lack of
jurisdiction.
PER CURIAM
Panel consists of Justices Bourliot, Hassan, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).
3