Opinion
No. 05-19-00051-CR
05-30-2019
EX PARTE MANUEL LUPE RIOS JR.
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. W90-54751-U(D)
MEMORANDUM OPINION
Before Justices Whitehill, Partida-Kipness, and Pedersen III
Opinion by Justice Whitehill
Manuel Lupe Rios Jr. appeals the trial court's order dismissing his post-conviction application for writ of habeas corpus. The State has filed a motion to dismiss the appeal for want of jurisdiction and appellant has filed a response. We dismiss the appeal.
In 1990, appellant entered negotiated pleas of guilty to two aggravated robbery offenses. Pursuant to the plea bargain agreement, the trial court deferred adjudication of guilt and placed appellant on deferred adjudication probation for ten years. In 1996, the State moved to proceed with adjudication. The trial court adjudicated appellant guilty and assessed punishment at fifty years' confinement. This Court affirmed the trial court's determination. See Rios v. State, No. 05-96-01073-CR, 1998 WL 548995 (Tex. App.—Dallas Aug. 31, 1998, pet. ref'd, untimely filed) (not designated for publication).
On October 26, 2018, appellant filed the current writ application. He used a form for filing writ applications under article 11.07 of the code of criminal procedure, but he crossed out the ".07" on the form and wrote in by hand ".072." According to the State and the trial court, this is appellant's fourth application for writ of habeas corpus.
Article 11.072 of the code of criminal procedure provides the exclusive avenue for habeas relief for an individual who is either serving a term of community supervision or who has completed a term of community supervision. See TEX. CODE CRIM. PROC. art. 11.072, §1; Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008). If an individual is serving time for a final felony conviction, that individual may not seek habeas relief under article 11.072, but must instead file an article 11.07 writ application. See TEX. CODE CRIM. PROC. art. 11.07, §§1, 3; Board of Pardons and Paroles ex rel. Keene v. The Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding). After the trial court adjudicated appellant guilty, revoked his community supervision, and sentenced him to prison, appellant was no longer eligible for article 11.072 relief. See art. 11.07, §§1, 3; Villanueva, 252 S.W.3d at 397.
Recognizing that appellant was ineligible for relief under article 11.072, the trial court and the State chose to treat appellant's application as filed under article 11.07. See Ex parte Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006) (Johnson, J., concurring in dismissal of habeas corpus) (court of criminal appeals bound by decision to treat applicant's 11.072 writ application as an 11.07 application even though applicant was not eligible for 11.07 relief); see also Ex parte Holland, No. 05-17-01422-CR, 2018 WL 3949545, at *3-4 (Tex. App.—Dallas Aug. 17, 2018, pet. ref'd) (not designated for publication) (appellate court accepted characterization by trial court and State of writ application as filed under 11.072 in though it was filed on 11.07 writ application form); Ex parte Martinez, No. 13-10-00085-CR, 2012 WL 1142882, at *1 n.1 (Tex. App.—Corpus Christi-Edinburg Apr. 5, 2012, no pet.) (finding jurisdiction under article 11.072 where parties and trial court agreed to treat writ application mistakenly filed under article 11.07 as writ application filed under article 11.072); Ex parte Salazar, No. 12-10-00443-CR, 2011 WL 6043028, at*1-3 (Tex. App.—Tyler Nov. 30, 2011, pet. ref'd) (dismissing appeal where trial court treated inmate's writ application filed under article 11.072 as being filed under article 11.07).
Following the procedures of article 11.07, the trial court issued an order finding "that there are no controverted, previously unresolved facts material to the legality of [appellant's] confinement which require an evidentiary hearing" and it forwarded to the court of criminal appeals copies of the order, appellant's writ application, and the State's response. See art. 11.07, §3(c). On January 9, 2019, the court of criminal appeals dismissed appellant's writ application. A copy of the dismissal notice is attached as an exhibit to the State's motion to dismiss.
This Court has jurisdiction to review writ applications filed under article 11.072, but not writ applications filed under article 11.07. See arts. 11.07, §5, 11.072, §8. The trial court chose to characterize appellant's writ application as an article 11.07 writ, followed the article 11.07 procedures, and the court of criminal appeals has adjudicated and dismissed appellant's writ application. Therefore, we have no jurisdiction to consider appellant's appeal from the trial court's order. See arts. 11.07, §5, 11.072, §8; Keene, 910 S.W.2d at 483; see also Ex parte Wicker, No. 02-18-00318-CR, 2018 WL 4140642, at *1 (Tex. App.—Fort Worth Aug. 30, 2018, no pet.) (mem. op., not designated for publication) (dismissing appeal of trial court's order recommending denial of article 11.07 writ application); Salazar, 2011 WL 6043028, at *1-3 (rejecting habeas applicant's argument that court of appeals had jurisdiction over writ application he filed under article 11.072 even though trial court had treated writ application as filed under article 11.07 and applicant was challenging final felony conviction).
We therefore GRANT the State's motion to dismiss the appeal.
We dismiss the appeal for want of jurisdiction.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190051F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. W90-54751-U(D).
Opinion delivered by Justice Whitehill. Justices Partida-Kipness and Pedersen III participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered May 30, 2019