Opinion
No. 01-11-00268-CR
Opinion issued April 21, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
Original Proceeding on Petition for Writ of Habeas Corpus.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MEMORANDUM OPINION
Rory Clifford Ellis has filed a pro se petition for writ of habeas corpus, asserting that the judgment of conviction in the underlying case must be reversed. Ellis's petition for writ of habeas corpus is procedurally defective because it lacks a certificate of service. By rule, all documents presented to this Court must be served on all parties to the proceeding and must contain proof of service. See TEX. R. APP. P. 9.5. In light of our disposition of the petition and to expedite its consideration, however, we will suspend that rule. See TEX. R. APP. P. 2. This Court cannot grant the relief Ellis requests. Ellis is incarcerated in Jefferson County, which is not within our court of appeals district. TEX. GOV'T CODE ANN. § 22.201(b), (j) (Vernon Supp. 2010). We do not have jurisdiction to issue a writ of habeas corpus for the release of a person restrained in a county outside our court of appeals district. See TEX. GOV'T CODE ANN. § 22.221(d) (Vernon 2004). Neither do we have original habeas corpus jurisdiction in criminal matters; our jurisdiction is appellate only. See Denby v. State, 627 S.W.2d 435, 435 (Tex. App.-Houston [1st Dist.] 1981, orig. proceeding); cf. TEX. GOV'T CODE ANN. § 22.221(d) (providing power to issue writ of habeas corpus in civil cases). Texas Code of Criminal Procedure article 11.05 vests power over original habeas corpus proceedings in criminal cases in the Texas Court of Criminal Appeals, the district courts, the county courts, or a judge of those courts. TEX. CODE CRIM. PROC. ANN. art. 11.05 (Vernon 2005). Therefore, this Court lacks jurisdiction in this case. Accordingly, we dismiss the petition for writ of habeas corpus for want of jurisdiction.
A jury convicted Ellis of felony driving while intoxicated in State v. Ellis, No. 08-05110 in the 252nd District Court of Jefferson County, Texas. Ellis appealed his conviction, and the Texas Supreme Court transferred his appeal to this Court from the Court of Appeals for the Ninth District of Texas. Misc. Docket No. 09-9049 (Tex. Apr. 13, 2009); see TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005) (authorizing transfer of cases). This Court affirmed Ellis's conviction, and Ellis's petition for discretionary review is currently pending with the Texas Court of Criminal Appeals. See Ellis v. State, No. 01-09-00325-CR, 2010 WL 5395688, at *5 (Tex. App.-Houston [1st Dist.] Dec. 30, 2010, pet. filed).