CourtListener 10845383•In Re Donald Wayne Herod v. the State of Texas
Full text
Opinion issued April 16, 2026
In The
Court of Appeals
For The
First District of Texas
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NO. 01-26-00308-CR
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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).
3
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