IN THE
TENTH COURT OF APPEALS
No. 10-16-00245-CR
EX PARTE JOE PENA, SR.
From the 20th District Court
Milam County, Texas
Trial Court No. 19,269
MEMORANDUM OPINION
In a document filed with this Court on July 29, 2016, Joe Pena, Sr. complains about
the validity of his conviction in 1998 for the felony offense of aggravated sexual assault
of a child. See TEX. PENAL CODE ANN. § 22.021 (West 2011). Although Pena styles the
document as a Writ of Mandamus, it is actually an original petition for writ of habeas
corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2015) (“The writ of habeas
corpus is the remedy to be used when any person is restrained in his liberty.”); see also id.
art. 11.07. It is not properly served. See TEX. R. APP. P. 9.5. The Clerk of this Court is not
a party to this proceeding. See id. 52.2. Nevertheless, we use Rule 2 to set aside this
requirement and proceed to a timely disposition. See id. 2.
As an intermediate court of appeals, we have no jurisdiction over post-conviction
writs of habeas corpus in felony cases. See TEX. CODE CRIM. PROC. ANN. art. 11.05 (West
2015); Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App.—Texarkana 2005, orig.
proceeding); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.); see
also Ex parte Hearon, 3 S.W.3d 650, 650 (Tex. App.--Waco 1999, orig. proceeding).
Accordingly, because we have no jurisdiction, we dismiss Pena’s petition.
Pena’s motion for leave to file his petition, which was also not served, is dismissed
as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Pet dismissed
Motion dismissed
Opinion delivered and filed August 10, 2016
[OT06]
Ex parte Pena Page 2
Ex Parte Joe Pena, Sr.
Combined Opinion