Opinion
No. 04-18-00054-CR
02-07-2018
IN RE Jerry Paul ROSE
MEMORANDUM OPINION
Original Mandamus Proceeding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice PETITION FOR WRIT OF MANDAMUS DENIED
This proceeding arises out of Cause Nos. B09-410 & B09-540, styled The State of Texas v. Jerry Paul Rose, pending in the 198th Judicial District Court, Kerr County, Texas, the Honorable Rex Emerson presiding.
On January 31, 2018, relator filed a pro se petition for writ of mandamus, complaining of the trial court's stacking order in the underlying criminal causes.
On July 9, 2014, this court affirmed the trial court's judgments in both underlying criminal causes. Although the Court of Criminal Appeals granted relator an extension of time to file petitions for discretionary review, he did not file a petition. Our mandate in both cases issued on November 6, 2014. In his petition for writ of mandamus, relator now contends his two criminal cases did not warrant stacking his sentences and he asks this court to order the trial court "to comply with applicable law as requested in previously filed motion . . . and dismiss the stacking order."
It is not clear from relator's petition whether he is asserting a failure-to-rule complaint against the trial court or asking this court to "dismiss the stacking order," but, for the reasons stated below, neither complaint warrants mandamus relief.
Attached to relator's petition is a copy of a motion he contends he filed with the trial court requesting rescission of the stacking order. Relator contends he filed the motion on or about November 20, 2017. A relator has the burden of providing this court with a record sufficient to establish a right to mandamus relief. See TEX. R. APP. P. 52.7(a)(1) (relator must file certified or sworn copy of every document material to relator's claim for relief that was filed in underlying proceeding"). In a case such as this one, a relator has the burden to provide a court of appeals with a record showing the trial court was made aware of the motion at issue and that such motion has not been ruled on by the trial court for an unreasonable period of time. In re Gallardo, 269 S.W.3d 643, 644-45 (Tex. App.—San Antonio 2008, orig. proceeding); In re Mendoza, 131 S.W.3d 167, 167-68 (Tex. App.—San Antonio 2004, orig. proceeding). Here, relator did not provide this court with a record sufficient to establish his claim for relief. Relator provided a copy of the motion he contends is the basis of his request for mandamus relief. However, the copy is not file-marked; thus, the copy does not show the motion was actually filed. Because the record does not establish the motion at issue was filed with the district clerk, the trial court has been made aware of the motion, or the trial court refused to rule on the motion, we conclude relator has not shown himself entitled to mandamus relief on his failure-to-rule complaint.
To the extent relator asks this court to dismiss the stacking order, this court does not have jurisdiction to consider relator's request for mandamus relief. Texas Code of Criminal Procedure article 11.07 provides the exclusive means to challenge a final felony conviction. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 5 (West 2015); Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding). Jurisdiction to grant post-conviction habeas corpus relief on a final felony conviction rests exclusively with the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3; Padieu v. Court of Appeals of Tx., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013) (orig. proceeding). Therefore, we conclude relator has not shown himself entitled to mandamus relief on his request that this court dismiss the stacking order.
For these reasons, we deny relator's petition for writ of mandamus.
PER CURIAM Do not publish