Ex Parte Kenneth R. McGraw

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-15-00629-CR

EX PARTE Kenneth R. McGRAW

Original Habeas Corpus Proceeding 1

Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: October 14, 2015

PETITION FOR WRIT OF HABEAS CORPUS DISMISSED FOR LACK OF JURISDICTION

On October 5, 2015, relator Kenneth McGraw filed a pro se petition for writ of habeas

corpus seeking to be released from his current incarceration on the basis of delay in bringing his

criminal case to trial. Relator is charged with felony theft for an offense occurring in March 2015.

See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2014). His criminal case has not yet been set for

trial.

This court, as an intermediate court of appeals, is not authorized to grant the relief relator

seeks. Pursuant to section 22.221(d) of the Texas Government Code, in civil matters, a court of

appeals “may issue a writ of habeas corpus when it appears that the restraint of liberty is by virtue

of an order, process, or commitment issued by a court or judge because of the violation of an order,

1 This proceeding arises out of Cause No. 2015CR6319, styled The State of Texas v. Kenneth R. McGraw, pending in the 399th Judicial District Court, Bexar County, Texas, the Honorable Ray Olivarri presiding. 04-15-00629-CR

judgment, or decree previously made, rendered, or entered by the court or judge in a civil case.”

TEX. GOV’T CODE ANN. § 22.221(d) (West 2004). In criminal matters, however, an intermediate

court of appeals has no original habeas corpus jurisdiction. Chavez v. State, 132 S.W.3d 509, 510

(Tex. App.—Houston [1st Dist.] 2004, no pet.); Watson v. State, 96 S.W.3d 497, 500 (Tex. App.—

Amarillo 2002, pet. ref’d); Dodson v. State, 988 S.W.2d 833, 835 (Tex. App.—San Antonio 1999,

no pet.). The courts authorized to issue writs of habeas corpus in criminal cases are the Texas Court

of Criminal Appeals, district courts, and county courts. See TEX. CODE CRIM. PROC. ANN. art.

11.05 (West 2015). Therefore, relator’s petition for writ of habeas is dismissed for lack of

jurisdiction.

In addition, we note that relator has been appointed counsel to represent him in connection

with his pending criminal charges. We conclude that any original proceeding on relator’s behalf

should be presented by relator’s appointed counsel. Relator is not entitled to hybrid representation.

See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995). The absence of a right to hybrid

representation means relator’s pro se petition presents nothing for this court’s review. See id.; see

also Gray v. Shipley, 877 S.W.2d 806, 806 (Tex. App.—Houston [1st Dist.] 1994, orig.

proceeding).

DO NOT PUBLISH

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