Summary
dismissing for want of jurisdiction Appellant's appeal from denial of post-judgment habeas application
Summary of this case from McCreary v. StateOpinion
NO. 12-20-00144-CR
09-02-2020
EX PARTE: JODY FORD MCCREARY
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS MEMORANDUM OPINION
Appellant Jody Ford McCreary was convicted in 2011 of tampering with physical evidence, a felony. On May 27, 2020, Appellant filed a pro se notice of appeal to challenge the trial court's denial of his post-judgment application for writ of habeas corpus.
On July 2, 2020, the Clerk of this Court notified Appellant that the notice of appeal did not show the jurisdiction of this Court, i.e., there is no new final judgment or appealable order. The notice further informed Appellant that the appeal would be dismissed unless the information was amended on or before July 17 to show this Court's jurisdiction. This Court received no response from Appellant.
Appellant previously attempted to appeal his 2011 conviction and sentence. This Court dismissed the appeal for want of jurisdiction. See McCreary v . State , 12-20-00029-CR, 2020 WL 827587 (Tex. App.—Tyler Feb. 19, 2020, no pet.) (mem. op.; not designated for publication) (per curiam).
Article 11.07 establishes the procedures for an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death. TEX. CODE CRIM. PROC. ANN. art 11.07 § 1 (West 2015). After final conviction in any felony case, the writ must be made returnable to the Texas Court of Criminal Appeals. Id. art. 11.07 § 3(a). Jurisdiction to grant postconviction habeas corpus relief on a final felony conviction rests exclusively with the Texas Court of Criminal Appeals. Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995). Accordingly, this Court lacks jurisdiction over postconviction habeas applications in felony cases. See Ford v . State , No. 12-20-00076-CR, 2020 WL 1697437, at *1 (Tex. App.—Tyler Apr. 8, 2020, no pet.) (mem. op.; not designated for publication) (per curiam) (dismissing appeal from denial of postconviction habeas application for want of jurisdiction); see also Ex parte Ngo , No. 02-16-00425-CR, 2016 WL 7405836, at *1 (Tex. App.—Fort Worth Dec. 22, 2016, no pet.) (mem. op., not designated for publication) (same). For this reason, we dismiss Appellant's appeal for want of jurisdiction. Opinion delivered September 2, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1110-10W)
THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.