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 
 –2– 

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. 

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). 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE