Dan Thomas v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-03-00426-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

  DAN THOMAS,   ' APPEAL FROM THE THIRD

APPELLANT

  V.   ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

  APPELLEE   ' ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Dan Thomas (AThomas@) appeals from the district court=s order denying his petition for writ of audita querela. Thomas presents two issues on appeal. We affirm.

In his petition for writ of audita querela, Thomas sought to collaterally attack his conviction for aggravated assault on a correctional officer in cause number 20,692. Specifically, he contends that the two prior convictions alleged in the enhancement paragraphs of the indictment in cause number 20,692 were not final convictions. Thomas further alleges that Anderson County officials, instead of granting him a speedy trial, filed a capias for a detainer while Thomas served sentences resulting from the other two convictions. Consequently, Thomas=s argument continues, the convictions became final and could then be used to enhance the aggravated assault charge. These facts, Thomas concludes, render the judgment of conviction in cause number 20,692 erroneous as a matter of law. Therefore, Thomas argues in two issues on appeal that the trial court abused its discretion in denying the writ and in not granting a hearing on Thomas=s petition. We disagree.

The legislature has prescribed the writ of habeas corpus as the remedy to be used when any person is restrained in his liberty. Tex. Code Crim. Proc. Ann. art. 11.01 (Vernon 1977). The procedure outlined in code of criminal procedure article 11.07 is the exclusive felony post-conviction remedy in the courts of this state. Ex parte Adams, 768 S.W.2d 281, 287 (Tex. Crim. App. 1989); see Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004). Consequently, the remedy Thomas seeks is not available to him. Accordingly, we overrule Thomas=s issues one and two. The trial court=s order is affirmed.

Thomas also filed a motion asking us to take judicial notice of certain records. Because we have affirmed the trial court=s order, Thomas=s motion to take judicial notice is overruled as moot.

DIANE DEVASTO

Justice

Opinion delivered May 19, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)