In re Mike Gutierrez Bruno--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00397-CR

In re Mike Gutierrez Bruno

Original Proceeding

MEMORANDUM Opinion

Relator Mike Gutierrez Bruno has filed a petition for writ of mandamus that in essence seeks post-conviction habeas corpus relief on the ground that he was prosecuted for possession of a controlled substance (in a penal institution) under the wrong statute (i.e., the general statute criminalizing possession of a controlled substance, rather than the specific statute criminalizing possession of a controlled substance in a penal institution). Bruno s petition avers that he pled guilty and did not appeal his guilty plea conviction.

Bruno asserts that due process and due course of law required the State to prosecute him under the special statute and that the convicting trial court lacked subject matter jurisdiction over the prosecution under the general statute. Bruno claims that, as a result, his guilty plea conviction is void and the State and the trial court abused their discretion and acted without authority in prosecuting him under the general statute. Bruno seeks mandamus relief in the form of having his guilty plea conviction vacated because of its alleged voidness.

Finally, Bruno avers that he brought this claim in a habeas corpus proceeding that was dismissed as an abuse of writ by the Court of Criminal Appeals in 2005.

An intermediate court of appeals has no jurisdiction over post-conviction 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.). 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 over what is in effect a post-conviction habeas corpus proceeding, we dismiss Bruno s petition for writ of mandamus.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition dismissed

Opinion delivered and filed January 23, 2008

Do not publish

[OT06]