DISMISSED and Opinion Filed August 15, 2019 

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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 d irecting the trial court to rule on his “Motion to Alte r or Amend the Judgme nt to Correct an Una uthorized and Illegal Sentence. Relator is currently serving a tw enty-year sentence for two cou nts of aggravated s exual assault of a child. On May 24, 2019, the Court dismisse d for want of jurisdiction r elator’s earlier petition for writ of mandamus seeking the same relief he seeks under the cur rent petition. See In re Schmitt , No. 05-19-00590-CV, 2019 WL 2266661 (Tex. App.—Dallas May 28, 2 019 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 1 1.07 writ of habeas corpus. Id . at 2019 WL 2266661, at *1; see also T EX
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. art. 11.07, § 1. A lthough relator had not filed a copy of the moti on to alter or amend the judgme nt, 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 j urisdiction 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. proceed ing) (mem. op.) (not desi gnated for publication). In the present case, relator has merely refiled the earlier pet ition for writ of mandamus and attached a copy of the motion. The motion makes a collateral a ttack upon the validity of the judgment and seeks what should be characterized as 11.07 relief

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. art. 11.07, §1; Ex parte Williams , 239 S.W.3d 859, 862 (Tex. App.—Austin 2007, no pet.) (holding article 11.07 is exclusiv e remedy for applicant confin ed 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) (denyi ng mandamus relief for failure to rule on motion to correct improperly cumulated sentences becaus e 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 f or want of jurisdiction.

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1 In fact, the court of criminal appeals has already concluded r elator’s claim should have been b rought 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