Ex Parte Danny Leon Lucas

• Court: Court of Appeals of Texas
• Decided: December 30, 2009
• Docket: 10-09-00374-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00374-CR

EX PARTE DANNY LEON LUCAS

From the 283rd District Court Dallas County, Texas Trial Court No. F84-22156(T)

MEMORANDUM OPINION

In 1985, Danny Leon Lucas appealed his conviction for burglary of a habitation

with the intent to commit theft. This Court affirmed his conviction in January of 1986

(10-85-00076-CR). Lucas is now scattering papers around various courts in an effort to

get a review of his case because of what he contends is newly discovered evidence.

The proceeding was tried in the 283rd District Court of Dallas County (No. F84-

77156(T)). The direct appeal, while properly filed in the Fifth Court of Appeals—Dallas

(05-85-00051-CR), was transferred to this Court by order of the Texas Supreme Court.

Any jurisdiction we had of Lucas’s direct appeal has long since expired when the

mandate issued on April 18, 1986. See TEX. R. APP. P. 19.1, 19.3.

In the document we received, Lucas states that he has filed four previous sets of

papers. He identifies the four prior filings, in the sequence filed, the court it was filed with if identified, and the response thereto, as being filed 1) on August 13, 2009, in the

Fifth Court of Appeals, to which the 283rd District Court failed to respond, 2) on

August 24, 2009, to which the 283rd District Court failed to respond, 3) on September

26, 2009, to which the “Criminal Court of Appeals” failed to respond, and 4) on October

7, 2009, to the “Texas Supreme Court Building” which “has failed to respond.”

The fifth filing, to which this opinion responds was filed with the Fifth Court of

Appeals on October 23, 2009 and subsequently unfiled, by striking through the file

stamp, and forwarded to this Court, the Tenth Court of Appeals. We presume this was

done because Lucas’s original appeal was transferred to this Court. Each of the five

documents appear to be substantially the same based upon the titles thereof and Lucas

expressly states that the four previously filed documents all requested the same relief.

The title of the fifth document, the one we received, is “Memorandum of Law in

Support of Appellant’s Motion to Vacate Judgment, on the Basis of Newly-Discovered,

Evidence Pursuant to Article § 440.10.” In the document, Lucas describes various

reasons he believes his otherwise final felony conviction should be overturned.

This Court does not have jurisdiction to review the complaints being made by

Lucas. See TEX. R. APP. P. 19.1, 19.3. It appears that Lucas’s relief, if any, would be by

following the procedures outlined for a post-conviction petition for writ of habeas

corpus in article 11.07 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC.

ANN. art. 11.07 (Vernon Supp. 2009). The only authority we may have over Lucas’s

proceeding would be actions to enforce our judgment and this Court’s mandate. See e.g.

In re Robertson, No. 10-09-00005-CV, 2009 Tex. App. LEXIS 2641, *5-6 (Tex. App.—Waco

Ex parte Lucas Page 2 April 15, 2009, orig. proceeding); In re State ex rel. Guarino, 64 S.W.3d 597 (Tex. App.—

Houston [1st Dist.] 2001, orig. proceeding). See also TEX. GOV’T CODE ANN. § 22.221

(Vernon 2004). We simply do not have the jurisdiction to review an 11.07 writ or

anything else in the nature of an attack on the final felony conviction of Lucas. See TEX.

CODE CRIM. PROC. ANN. arts. 11.05; 11.07, Sec. 3 (Vernon 2005 & Supp. 2009) (“The Court

of Criminal Appeals, the District Courts, the County Courts, or any Judge of said

Courts, have power to issue the writ of habeas corpus. . . .” After a final felony

conviction, a writ of habeas corpus must be filed with the court where the conviction

was obtained but then made returnable to the Court of Criminal Appeals of Texas.).

Accordingly, we dismiss this proceeding for want of jurisdiction.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Appeal dismissed Opinion delivered and filed December 30, 2009 Do not publish [CRPM]

Ex parte Lucas Page 3