Dismissed and Opinion Filed July 7, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00770-CR
No. 05-16-00771-CR
No. 05-16-00772-CR
No. 05-16-00773-CR
EX PARTE MICHAEL WHALEY, Relator
Original Proceeding from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F91-45041, F92-36477. F92-36482, F93-01488
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Relator was convicted in 1993 for aggravated robbery, engaging in organized criminal
activity, and aggravated assault. The Eastland Court of Appeals affirmed the conviction on
direct appeal. See Whaley v. State, No. 11-93-00127-CR (Tex. App.—Eastland Dec. 9, 1993, no
pet.). In this original proceeding, relator complains that his sentences were excessive and his
convictions the result of ineffective assistance of counsel and prosecutorial misconduct. He asks
this Court to conduct an evidentiary hearing under article 11.07(d) of the Code of Criminal
Procedure.
Although relator styles the petition as a “Notice of Appeal,” the substance of the petition
is a collateral attack on his underlying convictions.1 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 (West 2015). Only the Texas Court of
Criminal Appeals has jurisdiction in final post-conviction felony proceedings. Id ; In re McAfee,
53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding); Ater v. Eighth
Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (by granting
writ of mandamus to vacate judgment of conviction, court of appeals usurped exclusive authority
of court of criminal appeals to grant post-conviction relief).
Accordingly, we DISMISS this proceeding for want of jurisdiction.
/Molly Francis/
MOLLY FRANCIS
Do Not Publish JUSTICE
TEX. R. APP. P. 47
160770F.U05
1
Sentence was imposed in these cases on June 9, 1993. Relator has already had one direct appeal from his
convictions and nothing in his latest filing indicates that the trial court issued any new, appealable orders. To the
extent relator seeks to again directly appeal the 1993 convictions, such an appeal is untimely. TEX. R. APP. P.
26.2(a)(1).
2