Robert Gonzales Rodriguez v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00208-CR

Robert Gonzales Rodriguez,

Appellant

v.

The State of Texas,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 25,965-85-B

MEMORANDUM Opinion

Appellant Robert Gonzales Rodriguez was convicted of the felony offense of sexual assault of a child. Rodriguez s ten-year sentence was probated, and on appeal his conviction was affirmed. See Rodriguez v. State, No. 14-99-00746-CR, 2001 WL 91344 (Tex. App. Houston [14th Dist.] Feb. 1, 2001, no pet.). Thereafter, his probation was revoked, and he was sentenced to ten years in prison. Rodriguez filed a postconviction application for writ of habeas corpus in the convicting trial court on February 2, 2007. He alleges that his judgment of conviction is illegal and void because the visiting judge who presided over his trial was not qualified because (1) she failed to comply with the Texas Constitution and (2) she was biased or prejudiced and could not be fair and impartial.

In its April 16, 2007 Order to Transmit Habeas Corpus Record, the trial court found (1) that Rodriguez had previously filed a postconviction application for writ of habeas corpus that was denied without a written order, (2) that his instant application did not comply with section 4 of article 11.07 of the Code of Criminal Procedure, and (3) that he abused the writ of habeas corpus. The trial court recommended that the Court of Criminal Appeals find Rodriguez to have abused the writ of habeas corpus and to deny him all relief sought. The Court of Criminal Appeals dismissed the application on May 30, 2007. Rodriguez then filed motions in the trial court for an evidentiary hearing and for issuance of a bench warrant, which the trial court denied on June 28. Rodriguez next filed a notice of appeal of the dismissal of his habeas application on June 29. In a letter, this Court notified Rodriguez that his appeal was subject to dismissal because it appeared that we lacked jurisdiction.

This court has jurisdiction over criminal appeals only when expressly granted by law. See Everett v. State, 91 S.W.3d 386, 386 (Tex. App. Waco 2002, no pet.). An intermediate court of appeals has no jurisdiction over postconviction 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.) (same). 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 in this postconviction habeas corpus proceeding, we dismiss the appeal.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed September 26, 2007

Do not publish

[CR25]