NO. 12-10-00132-CR
NO. 12-10-00133-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
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IN RE: KENNETH LEON SNOW, ' ORIGINAL PROCEEDING
RELATOR
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MEMORANDUM OPINION ON REHEARING
Kenneth Leon Snow has filed a motion for rehearing, which is overruled. However, we withdraw our opinion dated June 30, 2010, and issue this opinion in its place.
Relator Kenneth Leon Snow seeks a writ of mandamus compelling the trial court to withdraw his guilty plea in two cases, vacate his sentences, and return him to the position he occupied prior to entering his guilty pleas. We deny the petition.
In 1998, Relator was convicted of robbery (trial court cause number 241-80487-97) and aggravated robbery (trial court cause number 241-80726-97) after pleading guilty to both offenses. He was granted deferred adjudication probation in both cases pursuant to a plea bargain. His deferred adjudication probation was subsequently revoked, and he is presently serving a term of imprisonment that was assessed upon revocation.[1]
Relator asserts in this original proceeding that, because he was convicted of aggravated robbery, he was ineligible for deferred adjudication probation. He reasons that because of this ineligibility, the trial court’s grant of deferred adjudication probation was void, as was the court’s subsequent revocation and assessment of a term of imprisonment. Therefore, he concludes, his guilty pleas were involuntary and he is entitled to withdraw them and be returned to the position he occupied before entering the pleas.
When presented with similar facts almost twenty years ago, the court of criminal appeals held that it was “the only court with jurisdiction in final post-conviction felony proceedings.” See Ater v. Eighth Court of Appeals, 802 S.W.241, 242-43 (Tex. Crim. App. 1991) (where defendant contended original grant of probation was void as a matter of law because probation not available for offense, and therefore subsequent plea and judgments were void, court of appeals was without jurisdiction to grant mandamus because defendant sought relief from final felony conviction); see also Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2009). Because the relief sought in Relator’s petition relates to postconviction relief from an otherwise final felony conviction, we are without jurisdiction to consider his petition for writ of mandamus. Accordingly, Relator’s petition is dismissed for lack of jurisdiction.
SAM GRIFFITH
Justice
Opinion delivered August 4, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
[1] Relator did not appeal his convictions, but has furnished documentation that, earlier this year, he filed an application for writ of habeas corpus in each trial court cause number. The court of criminal appeals dismissed each application without written order according to its procedure for addressing subsequent writ applications. See Tex. Code Crim. Proc. Ann. art. 11.07, § 4(a)–(c) (Vernon Supp. 2009).