Ex Parte Russell Olin Beard , 494 S.W.3d 315 ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00252-CR
EX PARTE RUSSELL OLIN BEARD
From the 54th District Court
McLennan County, Texas
Trial Court No. 2010-513-C2
OPINION
On July 17, 2015, Russell Olin Beard filed an application for writ of habeas corpus
in this Court pursuant to Texas Code of Criminal Procedure 11.07 requesting this Court
to “supply him with copies of all documents, records, and transcripts” from his trial court
cause number. This Court issued an opinion affirming Beard’s conviction for the offense
of sexual assault of a child on February 29, 2012.
Article 11.07 of the Texas Code of Criminal Procedure provides:
Sec. 3. (a) After final conviction in any felony case, the writ must be
made returnable to the Court of Criminal Appeals of Texas at Austin, Texas.
(b) An application for writ of habeas corpus filed after final
conviction in a felony case, other than a case in which the death penalty is
imposed, must be filed with the clerk of the court in which the conviction
being challenged was obtained, and the clerk shall assign the application to
that court. When the application is received by that court, a writ of habeas
corpus, returnable to the Court of Criminal Appeals, shall issue by
operation of law. …
TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3 (a) (b) (West 2015). An intermediate court of
appeals has no jurisdiction over post-conviction writs of habeas corpus in felony cases.
See Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App.—Texarkana 2005, orig.
proceeding); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.) The
Court of Criminal Appeals and this court have recognized that “the exclusive post-
conviction remedy in final felony convictions in Texas courts is through a writ of habeas
corpus pursuant to [article] 11.07.” Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App.
1996); see Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App.—Waco 2006, no pet.).
Moreover, Beard is not entitled—either as a matter of equal protection or due
process—to a free copy of the trial record for use in pursuing post-conviction habeas
corpus relief. United States v. MacCollom, 426 U.S. 317, 323-26, 96 S. Ct. 2086, 2090-92, 48
L. Ed. 2d 666 (1976); In re Coronado, 980 S.W.2d 691, 693 (Tex. App.—San Antonio 1998,
orig. proceeding); Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.–Houston [1st Dist.]
1993, order).
Because we have no jurisdiction over a post-conviction habeas corpus proceeding
in a felony case, we dismiss Beard’s petition for lack of jurisdiction.
Ex parte Beard Page 2
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Dismissed
Opinion delivered and filed August 13, 2015
Publish
[OT06]
Ex parte Beard Page 3