Ex Parte Carlton Eugene Brantner

• Court: Court of Appeals of Texas
• Decided: October 28, 2020
• Docket: 10-20-00275-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00275-CR

EX PARTE CARLTON EUGENE BRANTNER

Original Proceeding

MEMORANDUM OPINION

Carlton Eugene Brantner has filed in this Court what he has labeled as a “Motion

for Appointment of New Counsel on Appeal.”1 However, in reviewing the substance of

his filing, Brantner uses this motion to collaterally attack his underlying plea-bargained

judgment of conviction for continuous sexual abuse of a young child. See generally

Brantner v. State, No. 10-15-00183-CR, 2015 Tex. App. LEXIS 5961 (Tex. App.—Waco June

11, 2015, no pet.) (mem. op., not designated for publication).2 In other words, Brantner’s

1There are procedural problems with Brantner’s filing, but we use Texas Rule of Appellate Procedure 2 to look beyond those problems and dismiss the petition. See TEX. R. APP. P. 2.

2This Court dismissed Brantner’s initial appeal in this matter because his notice of appeal was untimely, and because the certification of Brantner’s right to appeal indicated that he waived his right to filing is in the nature of an application for writ of habeas corpus alleging an ineffective-

assistance-of-counsel claim.

The Court of Criminal Appeals and this Court have recognized that “the exclusive

post-conviction remedy in final felony convictions in Texas courts is through a writ of

habeas corpus pursuant to [article] 11.07.” Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex.

Crim. App. 1996); see TEX. CODE CRIM. PROC. ANN. art. 11.07; Ex parte Beard, 494 S.W.3d

315, 316 (Tex. App.—Waco 2015, no pet.); Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex.

App.—Waco 2006, no pet.). Moreover, only the Court of Criminal Appeals has

jurisdiction over post-conviction writs of habeas corpus in felony cases. See Bd. of Pardons

& Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim.

App. 1995); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see

also Ex parte Beard, 494 S.W.3d at 315.

Because we have no jurisdiction over post-conviction habeas-corpus proceedings

in felony cases, we dismiss Brantner’s “Motion for Appointment of New Counsel on

Appeal.”3 See TEX. CODE CRIM. PROC. ANN. art. 11.07; see also Olivo, 918 S.W.2d at 525 n.8;

Ex parte Beard, 494 S.W.3d at 315-16; Ex parte Mendenhall, 209 S.W.3d at 261.

appeal and that this was a plea-bargain case for which Brantner has no right of appeal. See Brantner v. State, No. 10-15-00183-CR, 2015 Tex. App. LEXIS 5961, at *1 (Tex. App.—Waco June 11, 2015, no pet.) (mem. op., not designated for publication).

3 We also recognize that Brantner has requested in his prayer that we “reset appellate time limits,” appoint him new counsel, reverse his conviction, and remand this cause to the trial court for a new evidentiary hearing. The latter two requests relate to what we have construed as Brantner’s application for writ of habeas corpus. To the extent that Brantner’s request that we “reset appellate time limits” constitutes

Ex parte Brantner Page 2 JOHN E. NEILL Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Dismissed Opinion delivered and filed October 28, 2020 Do not publish [OT06]

a request for an out-of-time appeal, we note that only the Court of Criminal Appeals has the authority to grant an out-of-time appeal. See Parr v. State, 206 S.W.3d 143, 144-45 (Tex. App.—Waco 2006, no pet.). Therefore, we lack jurisdiction over that request as well. See id. And with respect to Brantner’s request for the appointment of new counsel, we further note that the appointment of counsel to an indigent defendant is under the sole authority of the trial court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.—Waco 1999, order); TEX. CODE CRIM. PROC. ANN. art. 26.04(a).

Ex parte Brantner Page 3