in Re Carl Long ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00311-CR

In re Carl Long

Original Proceeding

MEMORANDUM  Opinion

          Carl Long seeks a writ of mandamus compelling Respondent, the Honorable John H. Jackson, Judge of the 13th District Court of Navarro County, to address and resolve certain issues identified in a remand order of the Court of Criminal Appeals.  Specifically, Long contends that Respondent failed to address four of at least twelve issues the Court of Criminal Appeals identified in an order issued by that Court on December 7, 2005 in a post-conviction habeas proceeding.  See Ex parte Long, No. WR-34,986-06, 2005 WL 3307083 (Tex. Crim. App. Dec. 7, 2005) (not designated for publication).  However, because Long’s complaint arises from a post-conviction habeas proceeding under article 11.07 of the Code of Criminal Procedure and because this Court does not have jurisdiction to entertain such a proceeding, Long’s complaint should be directed to the Court of Criminal Appeals. Accordingly, we will deny the petition.

          The on-line case information for Long’s habeas proceeding in the Court of Criminal Appeals, docketed under cause no. WR-34,986-06, reflects that the Court received Long’s habeas application in October 2005.  On December 7, the Court issued an order requiring Respondent to conduct a hearing and make findings on at least twelve issues so the Court could address the merits of the habeas application.  See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(d) (Vernon 2005).

          According to Long, Respondent conducted this hearing on March 2.  The Court of Criminal Appeals received a reporter’s record and other supplemental documents in May, and the writ application was submitted for decision on May 23.  Based on Respondent’s findings, the Court of Criminal Appeals denied Long’s writ application without a written order on June 14.[1]  The Court denied Long’s motion for reconsideration on June 27.

          Article 11.07, section 5 of the Code of Criminal Procedure provides, “After conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner.”  Tex. Code Crim. Proc. Ann. art. 11.07, § 5 (Vernon 2005).  Thus, the Court of Criminal Appeals and lower courts have recognized that “the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to [article] 11.07.”  Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); accord In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana 2006, orig. proceeding); McBride v. State, 114 S.W.3d 556, 557 (Tex. App.—Austin 2002, no pet.); Maye v. State, 966 S.W.2d 140, 143 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

          Long ultimately seeks to have his felony conviction set aside as a result of the relief sought in this mandamus proceeding.  However, an article 11.07 writ of habeas corpus is the exclusive means to accomplish this objective in a collateral proceeding.  Although such an application must be filed with the trial court, the writ, which issues by operation of law, “must be made returnable to the Court of Criminal Appeals.”  Tex. Code Crim. Proc. Ann. art. 11.07, § 3 (Vernon 2005).  Therefore, this Court does not have jurisdiction to entertain a post-conviction felony habeas application.  See In re Reyes, 195 S.W.3d 127, 127-28 (Tex. App.—Waco 2005, orig. proceeding); Maye, 966 S.W.2d at 143; see also McBride, 114 S.W.3d at 557.

           Because Long’s complaint arises from a post-conviction felony habeas proceeding and because this Court does not have jurisdiction to entertain such a proceeding, Long’s complaint should be directed to the Court of Criminal Appeals.  See DeLeon v. District Clerk, 187 S.W.3d 473, 473-74 (Tex. Crim. App. 2006) (granting mandamus relief where district clerk refused to file post-conviction habeas application).

          Accordingly, we deny the mandamus petition.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring)

Petition denied

Opinion delivered and filed December 6, 2006

Do not publish

[OT06]

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[1]           The Court of Criminal Appeals appears to have been satisfied with the manner in which Respondent addressed the issues identified by the December 7 remand order.