Jerry Mac Dennis v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jerry Mac Dennis, Jr.

Appellant

Vs.                   No. 11-01-00403-CR B Appeal from Scurry County

State of Texas

Appellee

Appellant filed a pro se notice of appeal challenging the trial court=s October 9, 2001, order denying his pro se application for post-conviction writ of habeas corpus.  We dismiss the appeal for want of jurisdiction.

The record reflects that, in 1977, appellant was originally convicted, upon his plea of guilty, of murder.  In September 2001, appellant filed in the trial court a pro se writ of habeas corpus in which he argued that his application was not Aa direct attack on [his]  conviction@ but was an attack on the Alengthening of his sentence by the State=s refusal to credit him with the time he spent released to parole.@  After the trial court denied his application, the Texas Court of Criminal Appeals returned the application for failure to follow the prescribed form for TEX. CODE CRIM.  PRO. ANN. art. 11.07 (Vernon Supp. 2002) relief.  Appellant then filed his notice of appeal stating that he desired to appeal to the court of appeals and that his application was not for relief pursuant to Article 11.07 but for relief under TEX. CODE CRIM. PRO. ANN. arts. 11.05 and 11.08 (Vernon 1977).

After the clerk=s record was filed in this court on November 30, 2001, the clerk of this court  wrote the parties advising that the October 9, 2001, order did not appear to be an appealable order and directing appellant to respond within 10 days showing grounds for continuing the appeal. Appellant has responded to our December 3, 2001, letter.

Appellant relies on the case of Ex parte Cantu, 913 S.W.2d 701 (Tex.App. - San Antonio1995, pet=n ref=d), to support his position that this court has jurisdiction to consider his appeal.  However, Cantu is factually distinguishable.  Cantu involved the trial court=s denial of a special pre-conviction plea of double jeopardy.  Cantu=s appeal was authorized pursuant to former TEX.R.APP.P. 44 now TEX.R.APP.P. 31.  In the present case, appellant is asserting habeas corpus claims after his felony conviction.  Rule 31 does not authorize an appeal to an intermediate appellate court in such a situation.

Appellant further contends in his response that TEX. CONST. art. I, ' 12^[1]; TEX. CONST. art. V, ' 8^[2]; and TEX. CODE CRIM. PRO. ANN. arts. 11.01,^[3] 11.05,^[4] and 11.08^[5] (Vernon 1977 & Supp. 2002) allow this court to consider his appeal.  We disagree.  None of the authorities appellant cites confer jurisdiction to this court.

Appellant is seeking relief following his felony conviction.  This court lacks jurisdiction to consider an appeal from the denial of an application.  Article 11.07.  The appeal is dismissed for want of jurisdiction.

PER CURIAM

January 10, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.                                

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^[1]Article I, section 12 provides that the writ of habeas corpus shall be a writ of right.

^[2]Article V, section 8 defines the jurisdiction of the district courts.

^[3]Article 11.01 defines the writ of habeas corpus.

^[4]Article 11.05 provides that the Court of Criminal Appeals, the district courts, the county courts, and any judge of those courts have the authority to issue writs of habeas corpus.  The courts of appeals are not named in this article.

^[5]Article 11.08 provides that an applicant indicted and confined on felony charges applies for a writ of habeas corpus to the judge of the court in which he was indicted.