In re James Willie Thompson--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-00-186-CR

IN RE JAMES WILLIE THOMPSON

From the 54th District Court

McLennan County, Texas

Trial Court # 97-92-C

MEMORANDUM OPINION

James Thompson previously filed a document asking that we give him an out-of-time appeal. See In re James Willie Thompson, No. 10-00-099-CR (Tex. App. Waco April 5, 2000, no pet.) (not designated for pub.). We noted that it is not within the authority of this court to grant such an appeal. See Davis v. State, 870 S.W.2d 43, 49 n.3 (Tex. Crim. App. 1994). We further commented that if we were to treat the document as a post-conviction application for writ of habeas corpus, we would likewise not have jurisdiction. Ex parte Hearon, 3 S.W.3d 650 (Tex. App. Waco 1999, no pet.).

Thompson has now filed a motion for abatement of appeal. In it, he asserts claims which should be advanced in a post-conviction application for writ of habeas corpus over which, as previously mentioned, we do not have jurisdiction. Id. Article 11.07, section 3(b) of the Code of Criminal Procedure provides the appropriate procedure for filing a post-conviction application for writ of habeas corpus. It states:

(b) An application for writ of habeas corpus filed after final conviction in a felony case, other than a case in which the death penalty is imposed, must be filed with the clerk of the court in which the conviction being challenged was obtained, and the clerk shall assign the application to that court. When the application is received by that court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall issue by operation of law. The clerk of that court shall make appropriate notation thereof, assign to the case a file number (ancillary to that of the conviction being challenged), and forward a copy of the application by certified mail, return receipt requested, or by personal service to the attorney representing the state in that court, who shall answer the application not later than the 15th day after the date the copy of the application is received. Matters alleged in the application not admitted by the state are deemed denied.

Tex. Code Crim. Proc. Ann. art. 11.07, 3(b) (Vernon Supp. 2000). Thus, treating the motion as a post-conviction application for writ of habeas corpus, we dismiss it for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Dismissed for want of jurisdiction

Opinion delivered and filed June 14, 2000

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