Ex Parte: Michael Whaley v. State

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Do Not Publish JUSTICE TEX.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