Opinion
NO. 14-17-00053-CR
02-07-2017
IN RE ROMARCUS D. MARSHALL, Relator
ORIGINAL PROCEEDING WRIT OF MANDAMUS
179th District Court Harris County, Texas
Trial Court Cause No. 833880
MEMORANDUM OPINION
On January 20, 2017, relator Romarcus D. Marshall filed a petition for writ of mandamus in this Court. See Tex. Gov't Code Ann. § 22.221 (West 2004); see also Tex. R. App. P. 52. In the petition, relator asks this Court to compel the Honorable Kristin Guiney, former judge of the 179th District Court of Harris County, to rule on relator's motions to convene a court of inquiry pursuant to Chapter 52 of the Code of Criminal Procedure. We dismiss the petition.
Judge Guiney left the bench on January 1, 2017. When a respondent in an original proceeding ceases to hold her office before the proceeding is finally disposed of, we must abate the proceeding and to permit the successor judge to reconsider the decision regarding relator's request for relief. See Tex. R. App. P. 7.2(b). However, abatement is not necessary when there is no possibility of mandamus relief. See In re James Constr. Group, LLC, No. 14-16-00966-CV, 2017 WL 177671, *1 (Tex. App.—Houston [14th Dist.] Jan. 13, 2017, orig. proceeding) (mem. op.) (per curiam); In re Pfiffner, No. 05-15-01208, 2015 WL 5783806, *1 (Tex. App.—Dallas Oct. 5, 2015, orig. proceeding) (mem. op.) ("When there is no possibility that mandamus relief will be granted, the purpose of rule 7.2(b) is not served by requiring the successor judge to reconsider the predecessor's ruling."). In this case, there is no possibility of mandamus relief because, as discussed below, the court lacks jurisdiction. Accordingly, abatement is not required.
Relator was convicted of the felony offense of capital murder and was sentenced to life imprisonment. His conviction was affirmed on appeal. See Marshall v. State, No. 07-01-00426-CR, 2003 WL 23024515 (Tex. App.—Amarillo 2003, pet. ref'd) (not designated for publication).
The appeal was assigned to this court and then transferred to the Seventh Court of Appeals by the Texas Supreme Court. See Tex. Gov't Code Ann. § 73.001.
Relator filed a motion for a court of inquiry alleging the prosecutor tampered with witnesses during his trial, committed official oppression due to his race, and tampered with a governmental record with intent to defraud another. The trial court has not ruled on his motion.
To obtain mandamus relief in a criminal case, a relator must demonstrate he does not have an adequate remedy at law to redress and alleged harm and that the act he seeks to compel is ministerial, which means not involving a discretionary or judicial decision. See State ex rel. Young v. Sixth Judicial Dist. Ct. of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). If the relator fails to satisfy either aspect of this two-part test, mandamus relief should be denied. Id. The trial court's act of considering and resolving a properly-filed, pending motion is ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).
When a district judge, acting in her capacity as magistrate, has probable cause to believe an offense has been committed against the laws of this state, the district judge may request that the presiding judge of the administrative judicial district appoint a district judge to commence a court of inquiry. Tex. Code Crim. Proc. Ann. art. 52.01(a) (West 2006). A court of inquiry is a criminal proceeding authorized by and conducted according to Chapter 52 of the Texas Code of Criminal Procedure. See id. arts. 52.01-.09.
The motion relator filed in the trial court is entitled, "Motion for Court of Inquiry in Accordance to Chapter 52 of the Texas Code of Criminal Procedure." Although relator phrases his request for relief as seeking to enforce the performance of a ministerial duty, the substance of his petition constitutes a collateral attack on his final felony conviction and is not an appropriate basis for mandamus relief. Such an attack falls within the scope of a post-conviction writ of habeas corpus under article 11.07 of the Code of Criminal Procedure. See id. art. 11.07 § 3 (West 2015). Article 11.07 provides the exclusive means to challenge a final felony conviction. Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995). While the courts of appeals have mandamus jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has jurisdiction over matters related to final post-conviction felony proceedings. Ater v. Eighth Ct. of Appeals, 802 S.W.2d 241, 243 (Tex. 1991). This court has no authority to issue a writ of mandamus to compel a district court to rule on matters seeking post-conviction relief in felony convictions in which the judgment is final. See In re McAfee, 53 S.W.3d 715, 718 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Accordingly, we dismiss relator's petition for lack of jurisdiction.
PER CURIAM Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).