Opinion
No. 08-18-00036-CR
04-11-2018
SHANNON MARK DOUTHIT, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from 394th District Court of Presidio County, Texas (TC # 2076) MEMORANDUM OPINION
Shannon Mark Douthit is attempting to appeal from an order dismissing his petition for writ of audita querela. We dismiss the appeal for lack of jurisdiction.
In 1987, Appellant was convicted of capital murder in Presidio County (cause number 2076) and sentenced to life imprisonment. Based on statements in his brief, Appellant is attempting to utilize a petition for writ of audita querela to challenge his conviction on the ground that he was not provided with a neutral competent psychiatrist to assist in the preparation of his defense. The trial court denied the writ application.
Appellant filed his brief only a few days after he filed his notice of appeal.
Black's Law Dictionary defines audita querela as a "writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses." Black's Law Dictionary 156 (10th ed. 2014). The Texas Legislature has determined that the writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. TEX.CODE CRIM.PROC.ANN. art. 11.01 (West 2015). Further, the procedure established in Article 11.07 of the Texas Code of Criminal Procedure is the exclusive post-conviction judicial remedy available when a conviction is final and the applicant is confined by virtue of his felony conviction. See TEX.CODE CRIM. PROC.ANN. art. 11.07; Ex parte Adams, 768 S.W.2d 281, 287 (Tex.Crim.App. 1989); McBride v. State, 114 S.W.3d 556, 557 (Tex.App.--Austin 2002, no pet.). In such a case, the Court of Criminal Appeals has exclusive jurisdiction to grant relief in a post-conviction habeas corpus proceeding. Padieu v. Court of Appeals of Texas, Fifth District, 392 S.W.3d 115, 117 (Tex.Crim.App. 2013). Appellant disputes the availability of habeas relief and insists that he is not seeking to set aside his conviction, but he argues in his brief that his guilty plea was involuntary and his conviction is tainted because he was not provided with a neutral psychiatrist to assist in his defense. Appellant is plainly challenging the validity of his final felony conviction. Because an Article 11.07 writ is the exclusive means to set aside Appellant's conviction and award him a new trial, the writ of audita querela is unavailable. See Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex.App.--Waco 2006, no pet.)(dismissing appeal based on writ of audita querela); McBride v. State, 114 S.W.3d 556, 557 (Tex.App.--Austin 2002, no pet.) (affirming district court's dismissal of petition for writ of audita querela). Accordingly, we dismiss the appeal for lack of jurisdiction. April 11, 2018
ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)