Summary
dismissing appeal of trial court's order recommending denial of article 11.07 writ application
Summary of this case from Ex parte MitchellOpinion
NO. 02-18-00318-CR
08-30-2018
EX PARTE JEREMY WICKER
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2009-1068-E MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Jeremy Wicker attempts to appeal the trial court's order recommending that his article 11.07 application for a post-conviction writ of habeas corpus be denied. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015). Having no jurisdiction over article 11.07 writs, we dismiss Wicker's attempted appeal.
From Wicker's notice of appeal and other documents filed with it, we see that he filed an article 11.07 application for a post-conviction writ of habeas corpus and that he is trying to appeal the trial court's order recommending its denial. But we have no jurisdiction over these writs. See id. art. 11.07, § 3(a); Bd. of Pardons & Paroles ex rel. Keene v. Ct. of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding); Ex parte Ngo, No. 02-16-00425-CR, 2016 WL 7405836, at *1 (Tex. App.—Fort Worth Dec. 22, 2016, no pet.) (mem. op., not designated for publication).
While this appeal was pending, the Texas Court of Criminal Appeals denied Wicker's application without a written order.
We have appellate jurisdiction over article 11.072 applications, but that is not what Wicker filed. See Tex. Code Crim. Proc. Ann. art. 11.072, §§ 1, 8 (West 2015) ("[P]rocedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision.").
We notified Wicker that we lack jurisdiction and warned him that we could dismiss his appeal unless we received a response showing grounds for continuing it. See Tex. R. App. P. 44.3. Wicker filed a response but failed to show grounds for continuing his appeal. We therefore dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
Wicker appears to argue that because we handled his direct appeal in 2012, we should have jurisdiction over his habeas appeal as well. See Wicker v. State, No. 02-11-00039-CR, 2012 WL 579469 (Tex. App.—Fort Worth Feb. 23, 2012, pet. ref'd) (mem. op., not designated for publication). But this position ignores article 11.07's section 3 and Keene.
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: KERR, PITTMAN, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: August 30, 2018