in Re Brian Damon Ward ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00287-CR
IN RE BRIAN DAMON WARD
Original Proceeding
From the 85th District Court
Brazos County, Texas
Trial Court No. 06-02558-CRF-85
MEMORANDUM OPINION
In this original proceeding, Brian Ward has filed a pro se petition for writ of
mandamus,1 but the petition in fact seeks post-conviction habeas relief on the conviction
1
The petition has numerous procedural deficiencies. It lacks proof of service; a copy of all documents
presented to this Court must be served on all parties (i.e., the district attorney, as real party in interest, and
the trial court, as respondent, among others that Ward has listed) and must contain proof of service. TEX.
R. APP. P. 9.5, 52.2. It lacks an appendix and a record. Id. 52.3(k), 52.7. And it does not include the
certification required by Rule 52.3(j). Id. 52.3(j). To expedite this matter, we implement Rule of Appellate
Procedure 2 to suspend these requirements. Id. 2.
for which he is currently imprisoned.2 Ward’s complaints, most of which are
unintelligible, center around alleged fraud or tampering with the weight of the cocaine
and around his sentence, which he appears to assert is excessive based on the allegedly
fraudulent weight. He appears to request us to vacate and set aside the weight of the
cocaine and his sentence because of the allegedly fraudulent weight.
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) (citing TEX. CODE CRIM. PROC. ANN. art. 11.07(3)(a), (b)
(West 2005)); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.)
(same). 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.); TEX. CODE CRIM. PROC. ANN. art. 11.07(3)(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.”). Furthermore, intermediate courts
of appeals do not have original habeas corpus jurisdiction in criminal-law matters. Ex
2
In 2008, we affirmed Ward’s conviction for possession with the intent to deliver cocaine, enhanced, and
for which he was sentenced to 19 years in prison. Ward v. State, No. 10-07-00146-CR, 2008 WL 90448 (Tex.
App.—Waco Jan. 9, 2008, no pet.).
In re Ward Page 2
parte Hearon, 3 S.W.3d 650 (Tex. App.—Waco 1999, orig. proceeding).
Because we have no jurisdiction over a post-conviction habeas corpus proceeding
in a felony case, we dismiss Ward’s petition for lack of jurisdiction.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Dismissed
Opinion delivered and filed September 10, 2015
Do not publish
[OT06]
In re Ward Page 3