Fred Franklin Alexander v. James H. McCullough

Opinion

Fred Franklin Alexander v. James H. McCullough

IN THE

TENTH COURT OF APPEALS

No. 10-02-017-CR

     FRED FRANKLIN ALEXANDER,

                                                                         Appellant

     v.

     JAMES H. McCULLOUGH,

                                                                         Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 01-12-16,342-CV

O P I N I O N

      Fred Franklin Alexander filed an “Affidavit” in which he asked the district court to withdraw certain findings in prior postconviction habeas corpus orders and withdraw an order granting probation from a 1980 conviction. The requests for withdrawal of findings and the order are based on a claim of ineffective assistance of counsel and the filing of an allegedly false affidavit by McCullough. The district court “dismissed” Alexander’s affidavit because “no cause of action has been stated.” We dismiss for lack of jurisdiction.

      First we must determine whether Alexander brought a cause of action by his “Affidavit.” We hold pro se pleadings "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972); accord Zuniga v. Zuniga, 13 S.W.3d 798, 803 (Tex. App.—San Antonio 1999, no pet.); In re Taylor, 28 S.W.3d 240, 246 (Tex. App.—Waco 2000, no pet.); Barnes v. State, 832 S.W.2d 424, 426 (Tex. App—Houston [1st Dist.] 1992, orig. proceeding). Thus, we review such pleadings "with patience and liberality." Taylor, 28 S.W.3d at 246 (quoting Barnes, 832 S.W.2d at 426). Accordingly, we construe Alexander’s affidavit as an application for writ of habeas corpus.

      We now determine whether this court has jurisdiction to hear an appeal of the denial of a felony, postconviction application for writ of habeas corpus. A postconviction challenge to a final felony conviction must be made under article 11.07 of the Code of Criminal Procedure. See id. art. 11.07 (Vernon Supp. 2003); Ex Parte McCullough, 966 S.W.2d 529, 531 (Tex. Crim. App. 1998); Ex Parte Gibbons, 992 S.W.2d 707, 708 (Tex. App.—Waco 1999, pet. ref’d). Only the Court of Criminal Appeals has jurisdiction to grant postconviction relief from an otherwise final felony conviction. See Board of Pardons & Paroles v. Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); Tex. Code Crim. Proc. Ann. art. 11.07 § 3(a) (Vernon Supp. 2003) (“After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas.”); In Re Stone, 26 S.W.3d 568, 569 (Tex. App.—Waco 2000, no pet.). Any action by this Court would be void and of no force and effect. Id. Accordingly, we dismiss Alexander's appeal for want of jurisdiction.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed December 31, 2002

Do not publish

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