Ex Parte Carlton Eugene Brantner ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00275-CR
EX PARTE CARLTON EUGENE BRANTNER
Original Proceeding
MEMORANDUM OPINION
Carlton Eugene Brantner has filed in this Court what he has labeled as a “Motion
for Appointment of New Counsel on Appeal.”1 However, in reviewing the substance of
his filing, Brantner uses this motion to collaterally attack his underlying plea-bargained
judgment of conviction for continuous sexual abuse of a young child. See generally
Brantner v. State, No. 10-15-00183-CR, 2015 Tex. App. LEXIS 5961 (Tex. App.—Waco June
11, 2015, no pet.) (mem. op., not designated for publication).2 In other words, Brantner’s
1There are procedural problems with Brantner’s filing, but we use Texas Rule of Appellate
Procedure 2 to look beyond those problems and dismiss the petition. See TEX. R. APP. P. 2.
2This Court dismissed Brantner’s initial appeal in this matter because his notice of appeal was
untimely, and because the certification of Brantner’s right to appeal indicated that he waived his right to
filing is in the nature of an application for writ of habeas corpus alleging an ineffective-
assistance-of-counsel claim.
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 TEX. CODE CRIM. PROC. ANN. art. 11.07; Ex parte Beard, 494 S.W.3d
315, 316 (Tex. App.—Waco 2015, no pet.); Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex.
App.—Waco 2006, no pet.). Moreover, only the Court of Criminal Appeals has
jurisdiction over post-conviction writs of habeas corpus in felony cases. See Bd. of Pardons
& Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim.
App. 1995); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see
also Ex parte Beard, 494 S.W.3d at 315.
Because we have no jurisdiction over post-conviction habeas-corpus proceedings
in felony cases, we dismiss Brantner’s “Motion for Appointment of New Counsel on
Appeal.”3 See TEX. CODE CRIM. PROC. ANN. art. 11.07; see also Olivo, 918 S.W.2d at 525 n.8;
Ex parte Beard, 494 S.W.3d at 315-16; Ex parte Mendenhall, 209 S.W.3d at 261.
appeal and that this was a plea-bargain case for which Brantner has no right of appeal. See Brantner v. State,
No. 10-15-00183-CR, 2015 Tex. App. LEXIS 5961, at *1 (Tex. App.—Waco June 11, 2015, no pet.) (mem. op.,
not designated for publication).
3 We also recognize that Brantner has requested in his prayer that we “reset appellate time limits,”
appoint him new counsel, reverse his conviction, and remand this cause to the trial court for a new
evidentiary hearing. The latter two requests relate to what we have construed as Brantner’s application for
writ of habeas corpus. To the extent that Brantner’s request that we “reset appellate time limits” constitutes
Ex parte Brantner Page 2
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Dismissed
Opinion delivered and filed October 28, 2020
Do not publish
[OT06]
a request for an out-of-time appeal, we note that only the Court of Criminal Appeals has the authority to
grant an out-of-time appeal. See Parr v. State, 206 S.W.3d 143, 144-45 (Tex. App.—Waco 2006, no pet.).
Therefore, we lack jurisdiction over that request as well. See id. And with respect to Brantner’s request for
the appointment of new counsel, we further note that the appointment of counsel to an indigent defendant
is under the sole authority of the trial court. See Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.—Waco
1999, order); TEX. CODE CRIM. PROC. ANN. art. 26.04(a).
Ex parte Brantner Page 3