Ex Parte David Duran v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 11, 2024
• Docket: 02-24-00093-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00093-CR ___________________________

Ex parte David Duran

On Appeal from the 211th District Court Denton County, Texas Trial Court No. F-2003-0427-C

Before Sudderth, C.J.; Kerr and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

David Duran, proceeding pro se, attempts to appeal the trial court’s

February 12, 2024 order which concludes that Duran is abusing the writ process and

recommends that the Texas Court of Criminal Appeals take no action on his twenty-

second Article 11.07 application for a post-conviction writ of habeas corpus.1 See

Tex. Code Crim. Proc. Ann. art. 11.07. We will dismiss Duran’s attempted appeal

because we do not have jurisdiction over appeals related to Article 11.07 writ

applications. See Duran v. State, No. 02-22-00228-CR, 2022 WL 17687417, at *1 (Tex.

App.—Fort Worth Dec. 15, 2022, no pet.) (mem. op., not designated for publication)

(dismissing a previously attempted Article 11.07 appeal by Duran for lack of

jurisdiction).

We have no jurisdiction over post-conviction applications under Article 11.07.

See Tex. Code Crim. Proc. Ann. art. 11.07; Ater v. Eighth Court of Appeals, 802 S.W.2d

241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (stating that the Court of Criminal

Appeals is the “only court with jurisdiction in final post-conviction felony

proceedings”); Duran, 2022 WL 17687417, at *1.

We notified Duran of our concern that we lack jurisdiction over his appeal and

stated that unless he filed a response showing grounds for continuing the appeal, we

1 The record shows that Duran’s attempted appeal concerns his final conviction for felony aggravated sexual assault, for which he was sentenced on September 10, 2003.

2 would dismiss it. See Tex. R. App. P. 44.3. Duran responded and stated that he

would “like to appeal” the trial court’s order for the following reasons:

• He has a right to obtain a writ under Article I of the Texas Constitution and the Open Courts Act;

• “Writ shall never be ‘suspended’ unless Rebellion or Invasion time”;

• The “Anti-Terrorism Act [] does not meet the requirement as Rebellion or invasion, only [the] Civil War 1860 was Rebellion or Invasion time and Death penalty Act does not meet it either”;

• New legal or factual bases exist; and

• The State violated his constitutional rights under Article I, Section 13 of the Texas Constitution.

None of these reasons provide us with a basis to assert jurisdiction over his

Article 11.07 appeal. For this reason, we dismiss his attempted appeal for lack of

jurisdiction. See Tex. R. App. P. 43.2(f).

/s/ Brian Walker

Brian Walker Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: April 11, 2024