Christopher D. Brown v. State of Texas ( 2001 )

NO. 07-01-0082-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 29, 2001

______________________________



CHRISTOPHER D. BROWN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 99-431758; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Upon a plea of guilty, on July 27, 2000, appellant Christopher D. Brown was convicted of possession of a controlled substance, a state jail felony, and punishment was assessed at 18 months confinement. The trial court suspended the imposition of sentence and placed appellant on community supervision. Upon the State's motion to revoke for alleged violations of the terms and conditions of community supervision, the trial court conducted a hearing. After evidence was presented, appellant's community supervision was revoked and the original sentence of 18 months confinement was imposed. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. Based upon the rationale expressed herein, the motion to withdraw is granted and the judgment is affirmed.

In support of his motion to withdraw, counsel has certified that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se brief if he desired to do so. Appellant did not file a pro se brief and the State did not favor us with a brief.

At the hearing on the State's motion to revoke appellant entered a plea of not true to the allegations and the State presented evidence of the violations. A community supervision officer testified that appellant violated the conditions of his community supervision by failing:

• to report for the month of September 2000;

• to provide proof of employment;
• to complete Life Skills and Employment Education classes;
• to pay court costs for September 2000;
• to pay community supervision fees for September 2000;
• to pay restitution for September 2000;
• to report to the community supervision office twice daily when not gainfully employed; and
• to pay attorney's fees for September 2000.

Officers Robert Garza and Morene Pair of the Texas Tech Police Department testified that appellant evaded arrest on September 11, 2000, after an attempted theft was reported on campus. At the conclusion of the evidence the trial court found that appellant had violated numerous conditions and revoked community supervision.

Counsel presents one arguable issue by which he contends the trial court abused its discretion in revoking appellant's community supervision. When reviewing an order revoking community supervision, the sole question before this Court is whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.App. 1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that appellant violated a condition of community supervision. One sufficient ground for revocation supports the trial court's order. Moore v. State, 605 S.W.2d 924, 925 (Tex.Cr.App. 1980). The evidence presented by the State established by a preponderance of the evidence that appellant violated numerous conditions of his community supervision. Thus, the trial court did not abuse its discretion in revoking his community supervision and imposing the original sentence of 18 years confinement.

We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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NO. 07-11-00103-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 17, 2011

RICKY D. HOWELL, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 97-425,194; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

            Appearing pro se, appellant Ricky D. Howell attempts to appeal an order of the trial court dismissing his “motion to set aside and vacate a void judgment and sentence.” Finding we lack jurisdiction over the matter, we will dismiss the appeal.

            In 1997, appellant entered an open plea of guilty to aggravated sexual assault in trial court case numbers 97-425,193 and 97-425,194.  The trial court assessed punishment in each case at life in prison and a fine of $10,000. The sentences were cumulated.  We affirmed appellant’s convictions and sentences in 1998, in appellate case numbers 07-97-0345-CR[1] and 07-97-0346-CR.[2]  Appellant did not seek review of either decision by the Court of Criminal Appeals.

            In January 2011, appellant filed his present motion in the trial court under case number 97-425,194.  He asserted the indictment “fail[ed] to meet the constitutional and Statutory (sic) requisites of a Grand Jury indictment.”  Hence, he continued, subject matter jurisdiction did not attach and his conviction is void.  Appellant further asserted the trial court “rendered punishment through a unitary bench trial it had no authority to conduct.”  According to the prayer, the trial court “must set aside it’s (sic) judgment and conviction and order defendant released from cause No. 97-425,195.”  (Emphasis added).  As authority for the motion, appellant relied on Texas Rule of Civil Procedure 329b(f),(g).  Tex. R. Civ. P. 329b(f),(g).

By order signed February 16, 2011, the trial court denied the motion. Appellant filed a notice of appeal in case number 97-425,194 on March 2.  The clerk’s record was filed April 28, and we note it does not contain a certification of appellant’s right of appeal.  Tex. R. App. P. 25.2(a)(2),(d).

            Appellant’s motion did not use the phrase habeas corpus, but its content indicates appellant sought habeas relief.[3]  See Tex. Code Crim. Proc. Ann. art. 11.01 (West 2005) (“[t]he writ of habeas corpus is the remedy to be used when any person is restrained in his liberty"); Ex parte Harris, 495 S.W.2d 231, 232 (Tex.Crim.App. 1973) (relief by habeas corpus is available to a person in custody under a sentence which is void because the punishment is unauthorized); Martin v. State, No. 03-10-0075-CR, 2010 Tex. App. Lexis 7242 (Tex.App.--Austin Aug. 31, 2010, pet. refused) (mem. op., not designated for publication) (holding “motion to set aside and vacate a void judgment” filed over eight years after sentencing by inmate serving life sentence for aggravated sexual assault was in substance an application for writ of habeas corpus).  Post-conviction relief from a final felony conviction where the death penalty was not assessed is cognizable on a writ of habeas corpus.  See Ex parte Rich, 194 S.W.3d 508, 511 (Tex.Crim.App. 2006); Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003).

Appellant is confined in the Institutional Division of the Texas Department of Criminal Justice as the result of a final felony conviction and seeks relief from that confinement.  The habeas corpus procedure set out in article 11.07 of the Code of Criminal Procedure provides the exclusive remedy for felony post-conviction relief in state court.  Tex. Code Crim. Proc. Ann. art. 11.07 § 5 (West Supp. 2010); Ex parte Brown, 662 S.W.2d 3, 4 (Tex.Crim.App. 1983) (per curiam).  If the applicant is held by virtue of a final conviction in a felony case, the writ is returnable to the Court of Criminal Appeals.  Tex. Code Crim. Proc. Ann. art. 11.07 § (3)(a) (West 2010); Brown, 662 S.W.2d at 4.  There is no role for the courts of appeals in the procedure under article 11.07.  Tex. Code Crim. Proc. Ann. art. 11.07 § 3 (West 2010); see Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991) (orig. proceeding) (stating only the Texas Court of Criminal Appeals has jurisdiction over state post-conviction felony proceedings).

            Regardless of the procedure appellant intended to initiate in the trial court by filing the motion, we have no jurisdiction to review that court’s ruling.  We therefore dismiss appellant’s case for want of jurisdiction.  In so doing, we also dismiss appellant’s pending “motion to transfer original documents to court of appeals” and “motion for waiver of court rules for filing in the court of appeals” for want of jurisdiction.

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish.

---

[1] Howell v. State, No. 07-97-0345-CR, 1998 Tex. App. Lexis 5075 (Tex.App.--Amarillo Aug. 18, 1998, no pet.) (not designated for publication) (trial court case number 97-425,193).

[2] Howell v. State, No. 07-97-0346-CR, 1998 Tex. App. Lexis 5076 (Tex.App.--Amarillo Aug. 18, 1998, no pet.) (not designated for publication) (trial court case number 97-425,194).

[3] In his attempted appeal to a sister court of an order denying a “motion to set aside and vacate the judgment and sentence as void,” appellant explained he was intentionally seeking relief under civil procedure Rule 329b(f) rather than a post-conviction writ of habeas corpus under article 11.07 of the Code of Criminal Procedure.  Howell v. State, No. 11-11-0087-CR, 2011 Tex. App. Lexis 3214, at *1-*2 (Tex.App.--Eastland Apr. 28, 2011, n.p.h.) (per curiam, mem. op., not designated for publication).  Finding appellant’s reliance on the rules of civil procedure misplaced, the court concluded appellant’s motion was not an appealable order and dismissed the cause for want of jurisdiction.  Id. at *2.