Ricardo Roque v. State

• Court: Court of Appeals of Texas
• Decided: May 20, 2010
• Docket: 14-09-00549-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed May 20, 2010.

In The

Fourteenth Court of Appeals

____________

NO. 14-09-00549-CR

RICARDO ROQUE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 906957

MEMORANDUM OPINION

This is an attempted appeal from an order denying appellant’s motion for leave to file an affidavit of innocence.  The record reflects appellant was convicted in August 2002.

  Initially, this court construed appellant’s motion as an attempt to file a subsequent application for writ of habeas corpus and transmitted the record to the Texas Court of Criminal Appeals.  The Texas Court of Criminal Appeals returned the record stating it was not properly before that court. 

Subsequently, appellant filed his brief.  In his sole issue, appellant claims the trial court abused its discretion denying his motion for leave to file an affidavit of innocence where sections 4(a)(1) and (2) of Article 11.07 of the Texas Code of Criminal Procedure requires an applicant seeking to file a subsequent post-conviction application of a writ of habeas corpus to make a threshold showing. 

We lack jurisdiction over this attempted appeal.  The exclusive post-conviction remedy after final felony convictions in Texas courts is through a writ of habeas corpus returnable to the Texas Court of Criminal Appeals, pursuant to article 11.07 of the Code of Criminal Procedure.  See Ater v. Eighth Court of Appeals, 802 W.W.2d 241, 243 (Tex. Crim. App. 1991); Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2009).

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Brown, Sullivan, and Christopher.

Do Not Publish C Tex.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