Anthony Wayne Brown v. State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-170-CR

ANTHONY WAYNE BROWN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 1991-12-C

MEMORANDUM OPINION

Anthony Brown was convicted of involuntary manslaughter on September 6, 1991 and punishment was assessed at ten years community supervision. On October 19, 1995, his community supervision was revoked. Five and a half years later, Brown filed Defendant s Nunc Pro Tunc Motion Regarding Judgment and Sentence in which he requests credit for time served while on probation. The trial court denied the motion. He appeals. We dismiss the appeal for want of jurisdiction.

Brown has been convicted of a felony and it is a final conviction. The proper venue to request credit for time served is a post-conviction application for writ of habeas corpus. Only the Court of Criminal Appeals has jurisdiction to grant post-conviction relief from an otherwise final felony conviction. In re Stone, 26 S.W.3d 568, 569 (Tex. App. Waco 2000, orig. proceeding) (citingBoard of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993)). Article 11.07 provides the means to submit a post-conviction challenge to the Court of Criminal Appeals:

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. 2001). Any action by this Court would be void and of no force and effect. Id. art. 11.07 5.

We dismiss the appeal for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Dismissed

Opinion delivered and filed August 22, 2001

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