in Re Steven M. Gary ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00293-CR
EX PARTE Steven M. GARY
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: May 20, 2015
PETITION FOR WRIT OF HABEAS CORPUS DISMISSED FOR LACK OF JURISDICTION
On May 11, 2015, relator Steven M. Gary filed a pro se petition for writ of habeas corpus,
seeking to have this court order his release from incarceration due to delay in bringing his pending
criminal charges to trial. In the underlying criminal proceeding, relator is charged with assault,
second offense. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2014). Relator’s pending
criminal charges are currently scheduled for trial later this month.
This court, as an intermediate court of appeals, is not authorized to grant the relief relator
seeks. Pursuant to section 22.221(d) of the Texas Government Code, in civil matters, a court of
appeals “may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue
of an order, process, or commitment issued by a court or judge because of the violation of an order,
1
This proceeding arises out of Cause No. 2014CR2945, styled The State of Texas v. Steven M. Gary, pending in the
175th Judicial District Court, Bexar County, Texas, the Honorable Mary D. Roman presiding.
04-15-00293-CR
judgment, or decree previously made, rendered, or entered by the court or judge in a civil case.”
TEX. GOV’T CODE ANN. § 22.221(d) (West 2004). In criminal matters, however, an intermediate
court of appeals has no original habeas corpus jurisdiction. Chavez v. State, 132 S.W.3d 509, 510
(Tex. App.—Houston [1st Dist.] 2004, no pet.); Watson v. State, 96 S.W.3d 497, 500 (Tex. App.—
Amarillo 2002, pet. ref’d); Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.—San Antonio 1999,
no pet.). In criminal matters, the courts authorized to issue writs of habeas corpus are the Texas
Court of Criminal Appeals, district courts, and county courts. See TEX. CODE CRIM. PROC. ANN.
art. 11.05 (West 2005). Therefore, relator’s petition for writ of habeas is dismissed for lack of
jurisdiction.
In addition, we note that relator has been appointed trial counsel to represent him in
connection with the currently pending criminal charges. We conclude that any original proceeding
on relator’s behalf should be presented by relator’s trial counsel. Relator is not entitled to hybrid
representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). The absence of
a right to hybrid representation means relator’s pro se petition presents nothing for this court’s
review. See id.; see also Gray v. Shipley, 877 S.W.2d 806, 806 (Tex. App.—Houston [1st Dist.]
1994, orig. proceeding).
PER CURIAM
DO NOT PUBLISH
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