Opinion
NO. 01-17-00032-CR
04-04-2017
EX PARTE DEMARQUIS ROGERS
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 14-DCR-065079A
MEMORANDUM OPINION
Demarquis Rogers attempts to appeal from the trial court's findings of fact and conclusions of law, signed on December 29, 2016, in which the trial court made findings, conclusions, and ordered that a copy of the application for writ of habeas corpus, the State's answer, and the trial court's findings and conclusions be sent to the Court of Criminal Appeals. We dismiss the appeal for lack of jurisdiction.
Rogers was convicted of the felony offense of burglary of a habitation. TEX. PENAL CODE § 30.02(a). He was sentenced to 45 years' imprisonment. In November 2016, Rogers filed an application for writ of habeas corpus in the trial court complaining of ineffective assistance of counsel and a defective indictment. He attached a memorandum of law seeking a new punishment and evidentiary hearing, a copy of the indictment, a notice of changes to the charges, a copy of the subsequent indictment, and case law. The State filed an answer.
After giving the parties an opportunity to file affidavits, the trial court signed its findings of fact and conclusions of law on December 29, 2016, in which it made the finding that the appeal of Rogers's conviction was at the First Court of Appeals and mandate had not yet issued. Based on this finding, the trial court made the following conclusions: (1) Rogers's conviction was not yet final because the appellate court mandate had not yet issued, and (2) Rogers's claims were premature and the application should be dismissed without prejudice. The trial court ordered the application, the State's answer, and the trial court's Findings of Fact and Conclusions of Law sent to the Court of Criminal Appeals.
Our court has jurisdiction in criminal cases as granted by law. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991). Although an article 11.07 writ is to be filed in the trial court, it must be made returnable to the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a); Maye v. State, 966 S.W.2d 140, 143 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Because jurisdiction in this type of case rests exclusively with the Court of Criminal Appeals, we have no jurisdiction over this appeal. See Maye, 966 S.W.2d at 143; Gilbert v. State, No. 01-09-00109-CR, 2009 WL 1959010, at *1 (Tex. App.—Houston [1st Dist.] July 9, 2009, pet. dism'd w.o.j.) (citing Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991)).
Accordingly, we dismiss the appeal for want of jurisdiction. Any pending motions are dismissed as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).