Domingo Tamayo v. the State of Texas

Fourth Court of Appeals San Antonio, Texas August 12, 2022

No. 04-22-00501-CR

Domingo TAMAYO, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR0676-W4 Honorable Jefferson Moore, Judge Presiding

ORDER Appellant, proceeding pro se, seeks to appeal the dismissal of his post-conviction application for writ of habeas corpus filed pursuant to article 11.07. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a). Under the exclusive procedure outlined in article 11.07, only the convicting trial court and the Court of Criminal Appeals have jurisdiction to review the merits of a post-conviction habeas petition; there is no role for the intermediate courts of appeals in the statutory scheme. Id. art. 11.07, § 5 (providing “[a]fter conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner”). Only the Court of Criminal Appeals has jurisdiction to grant post- conviction release from confinement for persons with a felony conviction. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3; Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993); In re Stone, 26 S.W.3d 568, 569 (Tex. App.—Waco 2000, orig. proceeding). The intermediate courts of appeals have no jurisdiction over post-conviction writs of habeas corpus in felony cases. Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding); see In re Coronado, 980 S.W.2d 691, 692 (Tex. App.—San Antonio 1998, orig. proceeding); Ex parte Ngo, No. 02-16-00425-CR, 2016 WL 7405836, at *1 (Tex. App.—Fort Worth Dec. 22, 2016) (mem. op., not designated for publication) (appeal dismissed for lack of jurisdiction).

Accordingly, we ORDER appellant to show cause in writing by August 29, 2022 why this appeal should not be dismissed for want of jurisdiction.

_________________________________ Beth Watkins, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of August, 2022.

_________________________________ Michael A. Cruz, Clerk of Court