NO. 12-03-00387-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TRENT ALVON SMITH,§ APPEAL FROM THE 241ST
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Appellant Trent Alvon Smith seeks to appeal the trial court's finding that there are no controverted, previously unresolved facts material to the legality of Appellant's confinement. We dismiss the appeal for want of jurisdiction.
Background
Appellant was convicted of robbery and was sentenced to seventy-five years of imprisonment. Sentence was imposed on August 30, 2000. Appellant filed three prior applications for writ of habeas corpus. The first was dismissed because a direct appeal was pending on the date the application was filed, and the other two were denied. This proceeding arises from Appellant's fourth application for writ of habeas corpus filed pursuant to article 11.07 of the Texas Code of Criminal Procedure.
On October 23, 2003, the State filed a response to Appellant's application. In its response, the State contended that Appellant has failed to show specific facts establishing entitlement to a subsequent review as required by article 11.07, section 4 of the Texas Code of Criminal Procedure. In its findings of facts and conclusions of law filed on October 23, 2003, the trial court concluded that "[Appellant] has failed to state any facts which would entitled [sic] him to relief under Article 11.07." Appellant seeks to appeal the trial court's conclusion.
Discussion
An application for writ of habeas corpus under article 11.07 must be filed with the clerk of the court in which the conviction being challenged was obtained, and the clerk must assign the application to the convicting court. Tex. Code Crim. Proc. Ann. art. 11.07, § 3(b) (Vernon Supp. 2004). When the application is received by the convicting court, a writ of habeas corpus, returnable to the court of criminal appeals, issues by operation of law. Id. The clerk of the convicting court assigns a file number to the case (ancillary to that of the conviction being challenged), and forwards a copy of the application to the attorney representing the State in the convicting court, who must answer it within fifteen days. Id. Within twenty days of the expiration of the time in which the State is allowed to answer, the convicting court must decide whether there are controverted, previously unresolved facts material to the legality of the applicant's confinement. Id., § 3(c). If the convicting court decides there are no such issues, the clerk must immediately transmit to the court of criminal appeals a copy of the application, any answers filed, and a certificate reciting the date upon which that finding was made. Id.
Article 11.07, section 5 provides that "[a]fter conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner." Id., § 5. 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 contains no role for the court of appeals. Id. Consequently, we conclude that we are without jurisdiction to review the merits of Appellant's appeal. Accordingly, the appeal is dismissed for want of jurisdiction. All pending motions are denied as moot.
SAM GRIFFITH
Justice
Opinion delivered December 17, 2003.
Panel consisted of Worthen, C.J. and Griffith, J.
(DO NOT PUBLISH)