Charles Elvis Raby v. State ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-09-00312-CR ____________________

CHARLES ELVIS RABY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CR24499

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MEMORANDUM OPINION

On July 30, 2009, we notified the parties that our jurisdiction was not apparent from the notice of appeal, and notified them that the appeal would be dismissed for want of jurisdiction unless we received a response showing grounds for continuing the appeal. The appellant filed a response. Raby argues our appellate jurisdiction has been invoked pursuant to a federal statute that applies only to federal courts. See 28 U.S.C.A. § 1651 (West 2006).

The notice of appeal seeks to appeal the trial court's order denying an application for writ of coram nobis. Raby was convicted in Cause No. CR24499 and served a two year sentence in the Texas Department of Criminal Justice, Correctional Institutions Division. ⁽¹⁾ Because his sentence has been discharged, the Court of Criminal Appeals dismissed Raby's petition for writ of habeas corpus. See Ex parte Raby, No. WR-65,937-01 (Tex. Crim. App. Oct. 2, 2006) (not reported). Raby then filed his petition for writ of coram nobis in state district court. The trial court denied relief without issuing a writ or conducting an evidentiary hearing.

In Texas, the writ of habeas corpus is the exclusive means for challenging a final felony conviction. See Ex parte McCune, 156 Tex. Crim. 213, 246 S.W.2d 171, 172 (1952). A writ of error coram nobis is not available in Texas state court as a post-conviction remedy. In re Reyes, 195 S.W.3d 127, 127-28 (Tex. App.-Waco 2005, no pet.). Coram nobis is not one of the enumerated writs for which a state district court has jurisdiction other than for enforcement of the court's jurisdiction. Tex. Gov't Code Ann. § 24.011 (Vernon 2004).

In this case, the trial court denied the writ application without addressing the merits. Accordingly, we hold the order from which appellant seeks to appeal is not appealable. The appeal is dismissed for want of jurisdiction.

APPEAL DISMISSED.

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HOLLIS HORTON

Justice

Opinion Delivered August 26, 2009

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Raby is currently incarcerated and serving a sixty year sentence in another case. See Raby v. State, No. 09-04-00120-CR, 2005 WL 729463 (Tex. App.-Beaumont Mar. 30, 2005, pet. ref'd).