IN THE
TENTH COURT OF APPEALS
No. 10-07-00397-CR
In re Mike Gutierrez Bruno
Original Proceeding
MEMORANDUM Opinion
Relator Mike Gutierrez Bruno has filed a petition for writ of mandamus that in essence seeks post-conviction habeas corpus relief on the ground that he was prosecuted for possession of a controlled substance (in a penal institution) under the wrong statute (i.e., the general statute criminalizing possession of a controlled substance, rather than the specific statute criminalizing possession of a controlled substance in a penal institution). Bruno’s petition avers that he pled guilty and did not appeal his guilty plea conviction.
Bruno asserts that due process and due course of law required the State to prosecute him under the special statute and that the convicting trial court lacked subject matter jurisdiction over the prosecution under the general statute. Bruno claims that, as a result, his guilty plea conviction is void and the State and the trial court abused their discretion and acted without authority in prosecuting him under the general statute. Bruno seeks mandamus relief in the form of having his guilty plea conviction vacated because of its alleged voidness.
Finally, Bruno avers that he brought this claim in a habeas corpus proceeding that was dismissed as an “abuse of writ” by the Court of Criminal Appeals in 2005.
An intermediate court of appeals has no jurisdiction over post-conviction writs of habeas corpus in felony cases. See Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App.—Texarkana 2005, orig. proceeding) (citing Tex. Code Crim. Proc. Ann. art. 11.07(3)(a), (b) (Vernon 2005)); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.). The Court of Criminal Appeals and lower courts have recognized that “the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to [article] 11.07.” Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); see Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App.—Waco 2006, no pet.).
Because we have no jurisdiction over what is in effect a post-conviction habeas corpus proceeding, we dismiss Bruno’s petition for writ of mandamus.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Petition dismissed
Opinion delivered and filed January 23, 2008
Do not publish
[OT06]
ight:200%'>Further, I note that the only source of any evidence that any part of the purchase price was paid by Flournoy came from his deposition testimony. On this record, it is not hard to conclude that the jury could have chosen to disbelieve this testimony. Because the jury could have easily disregarded this testimony, there is no basis upon which to limit the extent of the property upon which the constructive trust was imposed. The only jury finding on this claim was that funds belonging to the ward had been used for acquisition of the farm. Flournoy failed to secure a jury finding to establish what part, if any, of his funds could be traced to the purchase of the farm. It is improper for the majority to make that factual determination on appeal based on evidence the jury could have disbelieved. I would hold that the trial court properly imposed a constructive trust on the entire farm.
Thus, I concur in the judgment that a constructive trust is properly imposed on the farm, but dissent to the judgment to the extent it limits that constructive trust to a 35% undivided interest.
TOM GRAY
Chief Justice
Concurring and dissenting opinion delivered and filed on July 19, 2006