in Re: Jose F. Rodriguez, Jr. ( 2021 )

Dismissed w.o.j. and Opinion Filed February 22, 2021.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-01117-CV
IN RE JOSE F. RODRIGUEZ JR., Relator
Original Proceeding from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F20-41693-H
MEMORANDUM OPINION
Before Justices Schenck, Partida-Kipness, and Nowell
Opinion by Justice Partida-Kipness
Relator Jose F. Rodriguez, Jr. has filed an original application for writ of
habeas corpus in this Court pursuant to article 11.07 of the code of criminal
procedure. In his application, relator asks this Court to modify his community
supervision sentence by granting him a “compassionate release” from the
Intermediate Service Facility hold under which he says he is currently confined.
We do not have jurisdiction to consider an original application for writ of
habeas corpus filed in a criminal proceeding. TEX. CODE CRIM. PROC. art. 11.05; In
re Ayers, 515 S.W.3d 356, 356–57 (Tex. App.—Houston [14th Dist.] 2016, orig.
proceeding) (per curiam). Here, relator brings his writ application pursuant to article
11.07 of the code of criminal procedure. Trial court records show, however, that on
December 16, 2020, relator pleaded guilty to the offense of theft of property, less
than $2,500 under section 31.03(e)(4)(d) of the penal code and, pursuant to the terms
of a plea bargain, was sentenced to two years deferred adjudication community
supervision and a probated fine. The Order of Deferred Adjudication also notes that
relator is “to be held for ISF per condition of probation.” Because appellant is serving
a term of community supervision, any habeas relief he chooses to pursue must be
initiated pursuant to article 11.072. See TEX. CODE CRIM. PROC. art. 11.072, § 1; Ex
parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008); Ex parte Vetcher,
No. 05-17-00322-CR, 2017 WL 3498479, at *1 (Tex. App.—Dallas Aug. 16, 2017,
orig. proceeding) (mem. op.). We will, therefore, construe this proceeding as one
seeking relief pursuant to article 11.072 rather than article 11.07. See Ex parte
Holland, No. 05-17-01422-CR, 2018 WL 3949545, at *3–4 (Tex. App.—Dallas
Aug. 17, 2018, pet. ref’d) (mem. op.) (treating appeal as arising from denial of article
11.072 writ application despite appellant filing application in trial court on 11.07
form where trial court and State treated the application the same).
Article 11.072 establishes the procedures for an application for writ of habeas
corpus in which the applicant seeks relief from a judgment under which the applicant
is either serving a term of community supervision or has completed a term of
community supervision. TEX. CODE CRIM. PROC. art. 11.072, § 1. Those procedures
require an applicant to first seek relief in “the court in which community supervision
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was imposed.” TEX. CODE CRIM. PROC. art. 11.072, § 2(a). If the application is
denied in whole or part by the trial court, then the applicant may appeal under article
44.02 of the code of criminal procedure and Rule 31 of the Texas Rules of Appellate
Procedure. TEX. CODE CRIM. PROC. art. 11.072, § 8. This Court does not, however,
have jurisdiction to decide an original application for writ of habeas corpus under
article 11.072 like the one at issue here or under article 11.07 as cited by relator in
his application. In re Turcios, No. 05-20-00705-CV, 2020 WL 4745544, at *1 (Tex.
App.—Dallas Aug. 17, 2020, orig. proceeding) (mem. op.) (“we do not have
jurisdiction to grant article 11.07 relief or review the trial court’s determinations in
article 11.07 proceedings.”); In re Greer, No. 05-20-00158-CV, 2020 WL 813373,
at *1 (Tex. App.—Dallas Feb. 19, 2020, orig. proceeding) (mem. op.) (dismissing
original writ application brought under articles 11.072 and 11.09 for want of
jurisdiction). Accordingly, we dismiss this proceeding for want of jurisdiction.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
201117F.P05
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