Esparza, Edward ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-40,053-02

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EX PARTE EDWARD ESPARZA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1997CR0690-W2 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY

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   Per curiam.

O P I N I O N  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to sixty-five (65) years' imprisonment. His conviction was affirmed on direct appeal. Esparza v. State, 31 S.W.3d 338 (Tex. App. - San Antonio 2000), no pet.

Applicant contends that he was denied the opportunity to appeal the results of a post-conviction Chapter 64 proceeding because he did not receive notice of the results of that proceeding until after the deadline for filing an appeal.

The trial court has determined that Applicant is entitled to habeas relief because he lost the opportunity to appeal the results of the proceeding through no fault of his own. The court reasons that Applicant should be given an opportunity to file an out-of-time appeal and recommends granting relief.

However, habeas corpus relief is not available in this case. An unfavorable result or an error in procedure under Chapter 64 does not impose an independent confinement or conviction. Ex parte Baker, 185 S.W.3d 894 (Tex. Crim. App. 2006). Although there is a statutory right to appeal, Tex. Code Crim. Proc. Art. 11.07 does not give Applicant a means for obtaining an out-of-time appeal from the unfavorable results of a Chapter 64 proceeding. Ex parte Suhre, 185 S.W.3d 898 (Tex. Crim. App. 2006). Applicant may be entitled to relief by way of a second Chapter 64 proceeding.

We dismiss the application for habeas corpus relief.

Delivered: May 2, 2007

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