Opinion
No. 14-10-00403-CR
Opinion filed May 20, 2010. DO NO PUBLISH — Tex. R. App. P. 47.2.
Original Proceeding, Writ of Mandamus.
Panel consists of Justices ANDERSON, FROST and SEYMORE.
MEMORANDUM OPINION
Relator, Charles Lee Grable, an inmate in the Texas Department of Criminal Justice who is proceeding pro se, filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In his petition, Grable asks that this court compel the respondent, the Honorable Mary Lou Keel, presiding judge of the 232nd District Court in Harris County, to amend the judgment entered in his felony conviction so that a "complete" judgment is rendered. In 1998, Grable entered a guilty plea to indecency with a child. The plea document signed by Grable on January 15, 1998, reflects that there was no agreed recommendation on punishment and that a pre-sentence investigation would be conducted. On April 3, 1998, the trial court deferred an adjudication of guilt and placed Grable on probation for five years. Later that year, Grable's guilt was adjudicated and punishment was assessed at confinement for sixteen years in the Institutional Division of the Texas Department of Criminal Justice. See Grable v. State, No. 14-02-00335-CR, 2002 WL 1000398 (Tex. App.-Houston [14th Dist.] May 16, 2002, no pet.) (not designated for publication) (dismissing appeal for want of jurisdiction because notice of appeal was not filed until more than three years after adjudication of guilt). Grable claims that he entered into a negotiated plea agreement, the terms of which were not disclosed to the trial court and not reflected in the judgment. He claims that he agreed to plead guilty in exchange for the prosecutor's agreement not to file additional charges against him and his wife. He asserts that the trial court was required by statute to include the terms of any plea bargain in the judgment. See Tex. Code Crim. Proc. Ann. art. 42.01 § 1 (Vernon 2006). He also complains that the trial court did not comply with the admonishments concerning plea bargain agreements that are required by statute when the court accepts a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp. 2009). Grable concludes that his judgment is not complete and asks this court to order respondent to enter a complete judgment. In a criminal case, mandamus relief is authorized only if the relator establishes that (1) under the facts and the law, the act sought to be compelled is purely ministerial; and (2) he has no other adequate legal remedy. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding). An act is ministerial if the law dictates the duty to be performed with such certainty that nothing is left to the exercise of discretion. State ex rel. Healy v. McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994) (orig. proceeding). Although Grable 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 Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 § 3 (Vernon Supp. 2009). 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 Court 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 judge 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); see also In re Briscoe, 230 S.W.3d 196, 197 (Tex. App.-Houston [14th Dist.] 2006, orig. proceeding) (stating that because court of appeals lacked jurisdiction, petition seeking mandamus relief from the Court of Criminal Appeals may be filed to complain about convicting court's inaction in proceedings after final felony conviction). Accordingly, we dismiss Grable's petition for lack of jurisdiction.
While relator's plea may have been the result of negotiations with the State, because the punishment was not agreed, it was not considered a plea bargain, which is defined as "a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." Tex. R. App. P. 25.2(a)(2).