in Re Howard Eugene Braden

Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed May 24, 2011.

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-11-00430-CR

____________

 

IN RE HOWARD EUGENE BRADEN, Relator

 

 

 


ORIGINAL PROCEEDING

WRIT OF MANDAMUS

155th District Court

Austin County, Texas

Trial Court No. 5024

 

 

 


M E M O R A N D U M   O P I N I O N

            On May 17, 2011, relator, Howard Eugene Braden, filed a petition for writ of mandamus in this court.  See Tex. Gov’t Code §22.221; see also Tex. R. App. P. 52.1.  In the petition, relator complains that his life sentence for a rape conviction in 1974 is illegal and void.[1]  

            This court’s mandamus jurisdiction is governed by section 22.221 of the Texas Government Code.  Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to:  (1) writs against a district court judge or county court judge in the court of appeals’ district, and (2) all writs necessary to enforce the court of appeals' jurisdiction.  Tex. Gov’t Code § 22.221. 

The courts of appeals have limited mandamus jurisdiction over criminal law matters.  Dickens v. Second Court of Appeals, 727 S.W.2d 542, 548 (Tex. Crim. App. 1987).  To be entitled to mandamus relief, a relator must show that he has no adequate remedy at law to redress his alleged harm, and what he seeks to compel is a ministerial act, not involving a discretionary or judicial decision.  State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

            Relator’s request for relief is not an appropriate basis for mandamus relief, but instead is a matter for habeas relief.  See Tex.Code Crim. Proc. art. 11.01 (“The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty.”); see also Ex Parte Rich, 194 S.W.3d 508, 511 (Tex. Crim. App. 2006) (holding that a claim of an illegal sentence is cognizable at any time on a post-conviction writ of habeas corpus).  Therefore, we lack jurisdiction over relator’s petition for writ of mandamus.

            Accordingly, the petition for writ of mandamus is ordered dismissed.

 

                                                            PER CURIAM

 

Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).



[1]  Relator has provided copies of the indictment, verdict and judgment of conviction.  These documents reflect that relator was indicted for, convicted of, and sentenced to life in prison for aggravated rape, a first degree felony, as set out in the Penal Code in effect in 1974.  The offense of aggravated rape applied to a rape that included the threat of serious bodily injury or death, as in this case.