Danny Ray Smith v. State

Opinion

Opinion issued August 23, 2012.

In The Court of Appeals For The First District of Texas

NO. 01-12-00552-CR ____________

DANNY RAY SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 344th District Court Chambers County, Texas Trial Court Cause No. 14282

MEMORANDUM OPINION

Appellant, Danny Ray Smith, proceeding pro se, attempts to appeal from an

order signed by the trial judge denying his “2nd MOTION FOR 344th DISTRICT

COURT TO TAKE JUDICIAL NOTICE.” We dismiss the appeal. Appellant was convicted of felony theft and was found to be a habitual

offender.1 The judgment and sentence of confinement for twenty-five years were

entered on April 2, 2008. Appellant did not appeal from the judgment.

On May 21, 2012, appellant filed a “2nd MOTION FOR 344th DISTRICT

COURT TO TAKE JUDICIAL NOTICE,” requesting that the trial court take

judicial notice of the “Adjudicative Facts that Petitioner’s conviction is in violation

of State Legislative and Federal Constitutional Laws and is illegal.” The trial court

denied the motion on May 22. Appellant appeals the denial of the motion.

Article 11.07 provides the exclusive means to challenge a final felony

conviction. See TEX. CODE. CRIM. PROC. ANN. art. 11.07, § 5 (West Supp. 2011)

(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). “Article 11.07 contains no role for the courts of

appeals.” In re Briscoe, 230 S.W.3d 196, 196 (Tex. App.—Houston [1st Dist.]

2006, orig. proceeding) (internal citations omitted); see TEX. CODE. CRIM. PROC.

ANN. art. 11.07. Only the Texas Court of Criminal Appeals has jurisdiction over

matters related to post-conviction relief from a final felony conviction. TEX. CODE.

1 See TEX. PENAL CODE §§ 12.42(d) (West Supp. 2011), 31.03(e)(5) (West Supp. 2011). 2 CRIM. PROC. ANN. art. 11.07; Ater v. Eighth Court of Appeals, 802 S. W.2d 241,

243 (Tex. Crim. App. 1991); see In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—

Houston [1st Dist.] 2001, orig. proceeding). To complain about an action or

inaction of the trial court in a post-conviction felony proceeding, an appellant “may

seek mandamus relief from the Court of Criminal Appeals.” Briscoe, 230 S.W.3d

at 196–97; McAfee, 53 S.W.3d at 717.

Here, appellant’s felony conviction was final on April 2, 2008, and appellant

is attempting to appeal from an order denying post-conviction relief. We have no

jurisdiction over such an appeal. See TEX. CODE. CRIM. PROC. ANN. art. 11.07;

Ater, 802 at 243; McAfee, 53 S.W.3d at 717.

Accordingly, we DISMISS this appeal for want of jurisdiction. We dismiss

all pending motions as moot.

PER CURIAM

Panel consists of Justices Bland, Massengale, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).