Ex Parte David Murphy ( 2005 )

IN THE

TENTH COURT OF APPEALS

No. 10-05-00088-CR

Ex parte David Murphy,

                                                                      Appellant

From the 52nd District Court

Coryell County, Texas

Trial Court # FT-04-15251

MEMORANDUM Opinion

          David Murphy filed an application for writ of habeas corpus with the trial court under article 11.07 of the Texas Code of Criminal Procedure.[1]  Because the trial court did not act on the writ within 20 days, the failure of the court to act constitutes a finding that there are no controverted, previously unresolved facts which are material to Murphy’s confinement.  Tex. Code Crim. Proc. Ann. art. 11.07, § 3(c) (Vernon Supp. 2004-2005).  At this point, the trial court clerk “shall immediately transmit to the Court of Criminal Appeals a copy of the application….”  Id.

          The trial court clerk sent this Court the record of application.  We have no jurisdiction of article 11.07 writ applications.  See Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 1977); see also Nix v. State, 65 S.W.3d 664, 670 n. 26 (Tex. Crim. App. 2001).  Thus, it appears the record was mistakenly sent to this Court rather than the Court of Criminal Appeals.

          The Clerk of this Court is, therefore, ordered to immediately forward the record in this cause to the Court of Criminal Appeals as an 11.07 writ made returnable to the Court of Criminal Appeals.

          Accordingly, this cause is dismissed.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal Dismissed

Opinion delivered and filed February 16, 2005

Do Not Publish

[CR25]

---

[1] Murphy filed a previous writ with the trial court dated September 27, 2004.  That writ is the subject of Murphy’s notice of appeal in Cause Number 10-04-00366-CR. This writ of habeas corpus was filed on December 3, 2004, and is not a part of the referenced appeal.