Mario Ismael Gutierrez v. State

Fourth Court of Appeals San Antonio, Texas May 1, 2017

No. 04-15-00333-CR

Mario Ismael GUTIERREZ, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR4433 Honorable Philip A. Kazen, Jr., Judge Presiding

ORDER Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

On April 13, 2016, this court affirmed appellant’s felony conviction for possession of a controlled substance. On June 29, 2016, the Court of Criminal Appeals denied appellant’s pro se petition for discretionary review. We issued mandate on July 29, 2016. On April 24, 2017, appellant filed a pro se request for “A De Novo Review of His Appeal in Habeas Corpus.”

If a trial court denies a petitioner’s post-conviction application for writ of habeas corpus, the courts of appeals lack jurisdiction to review such a ruling. TEX. CODE CRIM. PROC. ANN art. 11.07, § 3(a) (West 2015); Ex parte Simpson, 260 S.W.3d 172, 174 (Tex. App.—Texarkana 2008, pet. ref’d). In this case, there is no ruling by a trial court. To the extent appellant is asking for a ruling on an application for writ of habeas corpus, only the Court of Criminal Appeals possesses authority to grant relief in post-conviction habeas proceedings when, as here, there is a final felony conviction. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5; Ex parte Simpson, 260 S.W.3d at 174.

For these reasons, this court lacks jurisdiction to consider the merits of appellant’s request, and the request is DENIED.

_________________________________ Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of May, 2017.

___________________________________ Keith E. Hottle Clerk of Court