Ex Parte: Manuel Amaya (Banuelos)

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                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                 §
                                                                 No. 08-09-00179-CR
                                                 §
 EX PARTE: MANUEL AMAYA                                            Appeal from the
 (BANUELOS)                                      §
                                                             168th Judicial District Court
                                                 §
                                                              of El Paso County, Texas
                                                 §
                                                                  (TC#46093-168-3)
                                                 §


                                 MEMORANDUM OPINION

       Pending before the Court is the State’s motion to dismiss for lack of jurisdiction.

Appellant, Manuel Amaya (Banuelos) seeks to appeal the trial court’s June 18, 2009 order

recommending to the Texas Court of Criminal Appeals that his application for an Article 11.07

writ of habeas corpus be denied. Appellant is currently incarcerated for an aggravated assault

conviction for which he was sentenced to 35 years’ imprisonment. Although Appellant asserts it

was not filed as such, his application for writ of habeas corpus challenges his final felony

conviction, and is therefore subject to the procedures established by Article 11.07 of the Texas

Code of Criminal Procedure. See Solomon v. State, 39 S.W.3d 704, 706 (Tex.App.--Corpus

Christi 2001, no pet.).

       Article 11.07 establishes the procedures for a post-conviction application for writ of

habeas corpus in a non-capital felony case. See TEX .CODE CRIM .PROC.ANN . art. 11.07 (Vernon

Supp. 2008). The only courts referred to in Article 11.07 are the convicting court and the Court

of Criminal Appeals. In re McAfee, 53 S.W.3d 715, 718 (Tex.App.--Houston [1st Dist.] 2001,
orig. proceeding). The Article prescribes no role for the court of appeals. See id. This Court has

no jurisdiction over post conviction habeas corpus proceedings under Article 11.07. See Ater v.

Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991)(orig. proceeding).

Accordingly, we grant the State’s motion and the appeal is dismissed for lack of jurisdiction.

       Also pending before the Court, is Appellant’s motion for supplementation of the record.

As we have concluded we lack jurisdiction to consider the appeal, Appellant’s motion is denied.



August 12, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.
Rivera, J. (Not Participating)

(Do Not Publish)




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