Erasmo Gonzales v. State ( 2007 )

NO. 07-07-0078-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 9, 2007
______________________________
ERASMO GONZALES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 69TH DISTRICT COURT OF DALLAM COUNTY;
NO. 3320-7; HON. RON ENNS, PRESIDING
_______________________________
Dismissal
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Erasmo Gonzales (appellant) appeals an order denying his “Motion for Judicial
Notice” signed by the trial court this year. We dismiss the cause for want of jurisdiction.
As revealed by the allegations and argument in his pro se appellant’s brief, appellant
has used his purported request for the trial court to take judicial notice as a means of
attacking the validity or legality of his 1996 conviction. Yet, that conviction became final
both many years ago and many years before appellant filed his 2007 notice of appeal.
TEX . R. APP. P. 26(a) (requiring an appellant to file his notice of appeal within 30 or 90 days
of the date the trial court sentenced him in open court).
Moreover, even if we were to interpret the motion to take judicial notice as effort to
initiate a habeas proceeding under art. 11.07 of the Texas Code of Criminal Procedure,
that would not change the outcome. Those proceedings are commenced in the Court of
Criminal Appeals, and intermediate appellate courts, such as ours, have no authority to act
on them. Parr v. State, 206 S.W.3d 143, 145 (Tex. App.–Waco 2006, no pet.) (holding that
intermediate appellate courts have no jurisdiction over art. 11.07 proceedings).
In sum, we have no jurisdiction over the substance of appellant’s complaints, and
having no such jurisdiction, we have no choice but to dismiss the appeal. Olivo v. State,
918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (obligating an intermediate appellate court
to dismiss the appeal if it lacks jurisdiction). So, it is dismissed.
Brian Quinn
Chief Justice
Do not publish.
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