In Re Donald Wayne Herod v. the State of Texas

Opinion issued April 16, 2026




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-26-00308-CR
                             ———————————
                  IN RE DONALD WAYNE HEROD, Relator


            Original Proceeding on Petition for Writ of Mandamus


                           MEMORANDUM OPINION

      Relator Donald Wayne Herod has filed a pro se petition for writ of

mandamus asserting complaints about his underlying conviction.1


1
      The underlying case is The State of Texas v. Donald Wayne Herod, cause number
      1152281, in the 339th District Court of Harris County, Texas, the Honorable
      Te’iva J. Bell presiding. This Court affirmed relator’s conviction under that cause
      number for the third-degree felony offense of driving while intoxicated—third
      offense. Herod v. State, No. 01-08-00908-CR, 2010 WL 1981577, at *5 (Tex.
      App.—Houston [1st Dist.] May 13, 2010, pet ref’d) (mem. op., not designated for
      publication).
      Herod’s petition, although styled as seeking mandamus relief, is a collateral

attack on his final felony conviction and, therefore, falls within the scope of a post-

conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal

Procedure.2 See TEX. CODE CRIM. PROC. art. 11.07. Article 11.07 provides the

exclusive means to challenge Herod’s final felony conviction. See TEX. CODE

CRIM. PROC. art. 11.07; Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d

115, 117 (Tex. Crim. App. 2013). “[W]hile the courts of appeals have mandamus

jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has

jurisdiction in final post-conviction felony proceedings.” In re McAfee, 53 S.W.3d

715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). Our mandamus

jurisdiction thus cannot be used to grant post-conviction habeas relief challenging a

final felony conviction. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243

(Tex. Crim. App. 1991) (orig. proceeding) (holding that court of appeals’ granting

writ of mandamus to vacate judgment of conviction on basis of allegedly invalid

guilty plea usurped exclusive authority of Court of Criminal Appeals to grant

postconviction relief).




2
      Article 11.07 pertains to an application for a writ of habeas corpus “in which the
      applicant seeks relief from a felony judgment imposing a penalty other than
      death.” TEX. CODE CRIM. PROC. art. 11.07, § 1. “After final conviction in any
      felony case, the writ must be made returnable to the Court of Criminal Appeals of
      Texas at Austin, Texas.” Id. § 3(a).
                                          2
      Accordingly, because Herod seeks to collaterally attack his final felony

conviction and because such collateral attacks are not cognizable in this original

proceeding, we dismiss his petition for writ of mandamus for lack of jurisdiction.

See In re Autrey, No. 05-23-00254-CV, 2023 WL 2806256, at *2 (Tex. App.—

Dallas Apr. 6, 2023, orig. proceeding) (mem. op.) (“When a relator files a petition

for writ of mandamus requesting only habeas relief that should be brought in an

article 11.07 habeas application, the proper course is to dismiss the petition for

want of jurisdiction.”). We dismiss any pending motions as moot.

                                 PER CURIAM
Panel consists of Justices Gunn, Caughey, and Morgan.
Do not publish. See TEX. R. APP. P. 47.2(b).




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