Opinion issued November 8, 2012
In The Court of Appeals For The First District of Texas
NO. 01-09-00526-CR ____________
DAMION DAMONE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1110589A
MEMORANDUM OPINION
Appellant, Damion Damone Williams, appeals the trial court’s denial of his
application for a writ of habeas corpus. See TEX. R. APP. P. 31. Appellant’s counsel has filed a motion to withdraw and an Anders brief. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
We grant counsel’s motion to withdraw and dismiss the appeal for want of
jurisdiction.
Background
In 2007, appellant pleaded guilty, without an agreed recommendation, to the
first-degree felony offense of aggravated robbery.1 The trial court deferred
adjudication and placed appellant on community supervision for five years.
In 2009, the State moved to adjudicate, alleging that appellant had violated
the terms of his community supervision by: (1) failing to report, (2) failing to
maintain employment, (3) failing to pay court costs, and (4) failing to participate in
certain supervision programs. Appellant, who was represented by retained counsel,
pleaded “true” to these allegations.
On March 5, 2009, the trial court found the allegations true, found appellant
guilty, and assessed punishment at confinement for eight years. The trial court
entered an affirmative finding on the use or exhibition of a deadly weapon, namely,
a firearm.
On April 4, 2009, appellant filed a motion to reconsider, challenging some,
but not all, of the alleged violations. The trial court denied the motion. 1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). 2 On April 23, 2009, appellant filed an application for a writ of habeas corpus.
Appellant stated, without further discussion, that he “object[ed] to the legal validity
of the conviction for which community supervision was imposed” and that he
sought relief from “unreasonable conditions of community supervision.” The
substance of the application, however, focused entirely on challenging the
sufficiency of the evidence supporting the revocation. Specifically, appellant
asserted that he had not “knowingly or intentionally” violated the terms of
community supervision, and he asserted that he had complied, or had attempted to
comply, with the terms. Finally, appellant complained that the punishment assessed,
that of confinement for eight years, is “excessive and unreasonable.”
On May 13, 2009, the trial court denied habeas relief. On June 4, 2009,
appellant filed a notice of appeal. See TEX. R. APP. P. 31.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and that
therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400.
The brief reflects that counsel delivered a copy of the brief to appellant and advised
appellant of his right to file a pro se response. See In re Schulman, 252 S.W.3d
403, 408 (Tex. Crim. App. 2008). Appellant has not filed a pro se response. The
State waived its opportunity to file a brief.
3 Jurisdiction
Generally, when this Court receives an Anders brief from an appellant’s
appointed counsel, we conduct a review of the entire record to determine whether
the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Schulman,
252 S.W.3d at 408. Here, however, we do not undertake the usual Anders analysis
because our review reflects that we lack jurisdiction over the appeal.
Appellant appeals the denial of his application for a writ of habeas corpus,
which he filed under Code of Criminal Procedure article 11.072. See TEX. CODE
CRIM. PROC. ANN. art. 11.072 (West 2005). Article 11.072 “establishes the
procedures for an application for a writ of habeas corpus in a felony or
misdemeanor case in which the applicant seeks relief from an order or a judgment
of conviction ordering community supervision.” Id. art. 11.072, § 1.
An application under this article must be filed with the clerk of the court in
which community supervision was imposed. Id. art. 11.072, § 2(a). “At the time
the application is filed, the applicant must be, or have been, on community
supervision, and the application must challenge the legal validity of: (1) the
conviction for which or order in which community supervision was imposed or (2)
the conditions of community supervision.” Id. art. 11.072, §.2(b). The legislature
“intended Article 11.072 to provide the exclusive means by which the district courts
4 may exercise their original habeas jurisdiction . . . in cases involving an individual
who is either serving a term of community supervision or who has completed a term
of community supervision.” Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim.
App. 2008) (emphasis added).
The statute provides that, “[i]f the application is denied in whole or part, the
applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate
Procedure.”2 TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (emphasis added); see
Arreola v. State, 207 S.W.3d 387, 390 (Tex. App.—Houston [1st Dist.] 2006, no
pet).
“[T]he jurisdiction of a court to consider an application for writ of habeas
corpus is determined at the time the application is filed.” Kniatt v. State, 206
S.W.3d 657, 663 (Tex. Crim. App. 2006). The record before us reflects that
appellant filed his application in the trial court after the trial court had adjudicated
him guilty of a felony offense. “After an adjudication of guilt, all proceedings,
including assessment of punishment, pronouncement of sentence, granting of
community supervision, and defendant’s appeal continue as if the adjudication of
2 Article 44.02 provides that “[a] defendant in any criminal action has the right of appeal under the rules” thereinafter prescribed, with certain conditions. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006). Rule of Appellate Procedure 31 governs the procedure in an appeal from a habeas corpus proceeding in a criminal case. TEX. R. APP. P. 31. 5 guilt had not been deferred.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West
2006).
Article 11.07 is the “exclusive” means to challenge a felony conviction
imposing a penalty other than death, as here. TEX. CODE. CRIM. PROC. ANN. art.
11.07, § 5 (West Supp. 2012) (providing that “[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”); Keene v. Court of Appeals for
Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995). An application for a
writ of habeas corpus filed after a felony defendant has been adjudged guilty and
sentenced to a term of confinement is properly filed with the trial court, but “must
be made returnable” to the Court of Criminal Appeals. See TEX. CODE. CRIM.
PROC. ANN. art. 11.07, §.3(a). In an article 11.07 writ proceeding, the trial court
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Opinion issued November 8, 2012
In The Court of Appeals For The First District of Texas
NO. 01-09-00526-CR ____________
DAMION DAMONE WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 1110589A
MEMORANDUM OPINION
Appellant, Damion Damone Williams, appeals the trial court’s denial of his
application for a writ of habeas corpus. See TEX. R. APP. P. 31. Appellant’s counsel has filed a motion to withdraw and an Anders brief. See Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
We grant counsel’s motion to withdraw and dismiss the appeal for want of
jurisdiction.
Background
In 2007, appellant pleaded guilty, without an agreed recommendation, to the
first-degree felony offense of aggravated robbery.1 The trial court deferred
adjudication and placed appellant on community supervision for five years.
In 2009, the State moved to adjudicate, alleging that appellant had violated
the terms of his community supervision by: (1) failing to report, (2) failing to
maintain employment, (3) failing to pay court costs, and (4) failing to participate in
certain supervision programs. Appellant, who was represented by retained counsel,
pleaded “true” to these allegations.
On March 5, 2009, the trial court found the allegations true, found appellant
guilty, and assessed punishment at confinement for eight years. The trial court
entered an affirmative finding on the use or exhibition of a deadly weapon, namely,
a firearm.
On April 4, 2009, appellant filed a motion to reconsider, challenging some,
but not all, of the alleged violations. The trial court denied the motion. 1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). 2 On April 23, 2009, appellant filed an application for a writ of habeas corpus.
Appellant stated, without further discussion, that he “object[ed] to the legal validity
of the conviction for which community supervision was imposed” and that he
sought relief from “unreasonable conditions of community supervision.” The
substance of the application, however, focused entirely on challenging the
sufficiency of the evidence supporting the revocation. Specifically, appellant
asserted that he had not “knowingly or intentionally” violated the terms of
community supervision, and he asserted that he had complied, or had attempted to
comply, with the terms. Finally, appellant complained that the punishment assessed,
that of confinement for eight years, is “excessive and unreasonable.”
On May 13, 2009, the trial court denied habeas relief. On June 4, 2009,
appellant filed a notice of appeal. See TEX. R. APP. P. 31.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with a brief stating that the record presents no reversible error and that
therefore the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400.
The brief reflects that counsel delivered a copy of the brief to appellant and advised
appellant of his right to file a pro se response. See In re Schulman, 252 S.W.3d
403, 408 (Tex. Crim. App. 2008). Appellant has not filed a pro se response. The
State waived its opportunity to file a brief.
3 Jurisdiction
Generally, when this Court receives an Anders brief from an appellant’s
appointed counsel, we conduct a review of the entire record to determine whether
the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Schulman,
252 S.W.3d at 408. Here, however, we do not undertake the usual Anders analysis
because our review reflects that we lack jurisdiction over the appeal.
Appellant appeals the denial of his application for a writ of habeas corpus,
which he filed under Code of Criminal Procedure article 11.072. See TEX. CODE
CRIM. PROC. ANN. art. 11.072 (West 2005). Article 11.072 “establishes the
procedures for an application for a writ of habeas corpus in a felony or
misdemeanor case in which the applicant seeks relief from an order or a judgment
of conviction ordering community supervision.” Id. art. 11.072, § 1.
An application under this article must be filed with the clerk of the court in
which community supervision was imposed. Id. art. 11.072, § 2(a). “At the time
the application is filed, the applicant must be, or have been, on community
supervision, and the application must challenge the legal validity of: (1) the
conviction for which or order in which community supervision was imposed or (2)
the conditions of community supervision.” Id. art. 11.072, §.2(b). The legislature
“intended Article 11.072 to provide the exclusive means by which the district courts
4 may exercise their original habeas jurisdiction . . . in cases involving an individual
who is either serving a term of community supervision or who has completed a term
of community supervision.” Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim.
App. 2008) (emphasis added).
The statute provides that, “[i]f the application is denied in whole or part, the
applicant may appeal under Article 44.02 and Rule 31, Texas Rules of Appellate
Procedure.”2 TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (emphasis added); see
Arreola v. State, 207 S.W.3d 387, 390 (Tex. App.—Houston [1st Dist.] 2006, no
pet).
“[T]he jurisdiction of a court to consider an application for writ of habeas
corpus is determined at the time the application is filed.” Kniatt v. State, 206
S.W.3d 657, 663 (Tex. Crim. App. 2006). The record before us reflects that
appellant filed his application in the trial court after the trial court had adjudicated
him guilty of a felony offense. “After an adjudication of guilt, all proceedings,
including assessment of punishment, pronouncement of sentence, granting of
community supervision, and defendant’s appeal continue as if the adjudication of
2 Article 44.02 provides that “[a] defendant in any criminal action has the right of appeal under the rules” thereinafter prescribed, with certain conditions. TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006). Rule of Appellate Procedure 31 governs the procedure in an appeal from a habeas corpus proceeding in a criminal case. TEX. R. APP. P. 31. 5 guilt had not been deferred.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West
2006).
Article 11.07 is the “exclusive” means to challenge a felony conviction
imposing a penalty other than death, as here. TEX. CODE. CRIM. PROC. ANN. art.
11.07, § 5 (West Supp. 2012) (providing that “[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”); Keene v. Court of Appeals for
Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995). An application for a
writ of habeas corpus filed after a felony defendant has been adjudged guilty and
sentenced to a term of confinement is properly filed with the trial court, but “must
be made returnable” to the Court of Criminal Appeals. See TEX. CODE. CRIM.
PROC. ANN. art. 11.07, §.3(a). In an article 11.07 writ proceeding, the trial court
does not grant or deny relief; rather, the trial court makes findings of fact and
transmits those findings to the Court of Criminal Appeals. Id. art. 11.07, § 3(d).
The Court of Criminal Appeals then determines whether to grant relief. See id. art.
11.07, § 5. Because the jurisdiction of the Court of Criminal Appeals over such
writs is exclusive, there is no role for a court of appeals. See Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); In re Briscoe, 230 S.W.3d
196, 196 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding).
6 Because appellant brought his application after the trial court had adjudicated
him guilty of a felony offense, this Court does not have jurisdiction to review the
trial court’s ruling on the application. See TEX. CODE. CRIM. PROC. ANN. art. 11.07,
§ 5; Ater, 802 S.W.2d at 243; In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—
Houston [1st Dist.] 2001, orig. proceeding).
Accordingly, we grant counsel’s motion to withdraw and dismiss the appeal
for want of jurisdiction.3 Attorney Dionne S. Press must immediately send the
notice required by Texas Rule of Appellate Procedure 6.5(c) and file a copy of that
notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c).
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
3 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See In re Schulman, 252 S.W.3d 403, 411 (Tex. Crim. App. 2008); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.). 7