Summary
holding that trial court has no duty to rule on mandamus petition where claim must be raised under Article 11.07
Summary of this case from In re BeltonOpinion
No. 09-10-00262-CV
Opinion Delivered June 24, 2010.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Danny Howard Beatley seeks mandamus relief against the successor judge presiding in the sentencing court. Beatley contends the trial court has a ministerial duty to vacate a void sentence. We deny the petition for writ of mandamus.
Generally, the trial court has a duty to rule on a properly and timely filed motion within a reasonable time. See State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987). The exclusive vehicle for a state court challenge to a final felony conviction is Article 11.07 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2009); Board of Pardons Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995). Beatley pursued an appeal, filed several applications for post-conviction habeas corpus relief, and sought mandamus relief from the Court of Criminal Appeals. See Beatley v. Dretke, No. CIV.A. H-05-1565, 2006 WL 1581977, at *1 (S.D. Tex. June 7, 2006); Ex parte Beatley, No. WR-61,342-04 (Tex. Crim. App. Jan. 21, 2009); In re Beatley, No. WR-61,342-03 (Tex. Crim. App. Aug. 20, 2008); Ex parte Beatley, No. WR-61,342-02 (Tex. Crim. App. May 28, 2008); Ex parte Beatley, No. WR-61,342-01 (Tex. Crim. App. Mar. 2, 2005); Beatley v. State, No. 10-02-118-CR, 2003 WL 21780952, at *1 (Tex. App.-Waco July 30, 2003, pet. ref'd) (not designated for publication). After those efforts failed, Beatley filed a motion to vacate the judgment with the trial court. The motion was not properly before the trial court. "It is well settled that only the court of criminal appeals has the authority to set aside a criminal conviction after the plenary power of the trial court has expired." Brunelle v. State, 113 S.W.3d 788, 790 (Tex. App.-Tyler 2003, no pet.) (citing Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993)).
The merits of the relief sought must be beyond dispute for the relator to show that he has a clear right to mandamus relief. Winters v. Presiding Judge of Crim. Dist. Court No. Three of Tarrant County, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003). Beatley argues the sentence is void because he did not sign a waiver of punishment by a jury, but Beatley admits that he waived his right to trial by jury and entered a plea of guilty to the trial court. See TEX. CODE CRIM. PROC. ANN. art. 1.13 (Vernon 2005) ("The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State."). The subsection of Article 37.07 cited by Beatley applies when the case is tried to a jury on a plea of not guilty. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2 (Vernon Supp. 2009) ("In all criminal cases, other than misdemeanor cases of which the justice court or municipal court has jurisdiction, which are tried before a jury on a plea of not guilty, the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged, without authorizing the jury to pass upon the punishment to be imposed."). Article 26.14, which is also cited by Beatley, does not apply if the defendant waives his right to a jury trial pursuant to Article 1.13. See TEX. CODE CRIM. PROC. ANN. art. 26.14 (Vernon 2009) ("Where a defendant in a case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the punishment is not absolutely fixed by law, a jury shall be impaneled to assess the punishment and evidence may be heard to enable them to decide thereupon, unless the defendant in accordance with Articles 1.13 or 37.07 shall have waived his right to trial by jury.").
We may grant mandamus relief if relator demonstrates that the act sought to be compelled is purely ministerial under the relevant facts and law, and that relator has no other adequate legal remedy. State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Beatley has neither shown that he has a clear and indisputable right to have the trial court set aside Beatley's sentence, nor has Beatley shown that he is presently entitled to mandamus relief from this Court. Accordingly, we deny the petition for writ of mandamus.
PETITION DENIED.