Ex Parte Elbert Perry Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 24, 2024
• Docket: 09-23-00378-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00378-CR __________________

EX PARTE ELBERT PERRY JR.

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. F11-13027-B __________________________________________________________________

MEMORANDUM OPINION

Elbert Perry Jr. filed a notice of appeal from a final order denying

his application for a writ of habeas corpus. We questioned our

jurisdiction. Perry did not file a response.

In its order denying the application for a writ of habeas corpus, the

trial court noted that Perry has a final felony conviction for which he is

serving a sentence in the Institutional Division of the Texas Department

of Criminal Justice and that his conviction and sentence have been

1 affirmed on appeal. 1 Perry applied for habeas relief directly from the trial

court under article 11.05 of the Texas Code of Criminal Procedure, he did

not file a post-conviction writ application returnable to the Court of

Criminal Appeals under article 11.07 of the Texas Code of Criminal

Procedure. 2 In its order, the trial court stated that Perry’s writ

application presents complaints regarding parole and mandatory

supervision, commented that applications addressing parole or

mandatory supervision should be brought under article 11.07, and denied

Perry’s application for a writ of habeas corpus under article 11.05.

When the trial court doesn’t address the application’s merits when

the court denies the defendant’s application for a writ of habeas corpus,

the defendant has no right to appeal. Ex parte Hargett, 819 S.W.2d 866,

869 (Tex. Crim. App. 1991); Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex.

App.–Austin 2000, pet. ref’d). Here, no writ was issued, the trial court did

not hold an evidentiary hearing on the application, and the trial court

denied the application without addressing or ruling on the merits of

1See generally Perry v. State, No. 09-12-00054-CR, 2013 WL 3487343 (Tex.

App.—Beaumont July 10, 2023, no pet.) (mem. op., not designated for publication). 2Compare Tex. Code Crim. Proc. Ann. art. 11.05, with Tex. Code Crim. Proc.

Ann. art. 11.07. 2 Perry’s complaints. Accordingly, we dismiss the appeal for lack of

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

APPEAL DISMISSED.

PER CURIAM

Submitted on January 23, 2024 Opinion Delivered January 24, 2024 Do Not Publish

Before Horton, Johnson and Wright, JJ.