DISMISSED and Opinion Filed August 15, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00870-CV
IN RE ROBERT JOSEPH SCHMITT, Relator
Original Proceeding from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-81160-00
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Bridges
In this original proceeding, relator seeks a writ of mandamus directing the trial court to rule
on his “Motion to Alter or Amend the Judgment to Correct an Unauthorized and Illegal Sentence.
Relator is currently serving a twenty-year sentence for two counts of aggravated sexual assault of
a child.
On May 24, 2019, the Court dismissed for want of jurisdiction relator’s earlier petition for
writ of mandamus seeking the same relief he seeks under the current petition. See In re Schmitt,
No. 05-19-00590-CV, 2019 WL 2266661 (Tex. App.—Dallas May 28, 2019 orig. proceeding). In
that opinion, the Court held relator was attempting to raise a collateral attack on a final conviction
that would fall within the scope of a post-conviction article 11.07 writ of habeas corpus. Id. at
2019 WL 2266661, at *1; see also TEX. CODE CRIM. PROC. ANN. art. 11.07, § 1. Although relator
had not filed a copy of the motion to alter or amend the judgment, from the title and the description
of it, the Court construed the motion as an article 11.07 writ application. See Schmitt, 2019 WL
2266661, at *1. The Court dismissed the petition for want of jurisdiction because only the court
of criminal appeals has jurisdiction to order a trial court to rule on a pending article 11.07 writ
application. See id.; see also Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117–
18 (Tex. Crim. App. 2013); In re Ward, No. 12-15-00142-CR, 2015 WL 3505189, at *1 (Tex
App.—Tyler June 3, 2015, orig. proceeding) (mem. op.) (not designated for publication).
In the present case, relator has merely refiled the earlier petition for writ of mandamus and
attached a copy of the motion. The motion makes a collateral attack upon the validity of the
judgment and seeks what should be characterized as 11.07 relief. See TEX. CODE CRIM. PROC.
ANN. art. 11.07, §1; Ex parte Williams, 239 S.W.3d 859, 862 (Tex. App.—Austin 2007, no pet.)
(holding article 11.07 is exclusive remedy for applicant confined under allegedly illegal
consecutive sentences); In re Tenberg, No. 13-09-00612-CR, 2010 WL 127555 (Tex. App.—
Corpus Christi-Edinburg (Jan. 14, 2010 orig. proceeding) (denying mandamus relief for failure to
rule on motion to correct improperly cumulated sentences because improper cumulation of
sentences is subject to habeas relief).1 This Court has already held that we have no jurisdiction
over this matter. See Schmitt, 2019 WL 2266661, at *1.
We dismiss this proceeding for want of jurisdiction.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
190870F.P05
1
In fact, the court of criminal appeals has already concluded relator’s claim should have been brought on direct appeal or in an application
for article 11.07 habeas relief. See State v. Schmitt, No. PD-0594-11, 2012 WL 3996813, at *3 (Tex. Crim. App. Sep. 12, 2012).
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