### NUMBER 13 - 10 - 085 - CR 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

- 

## EDINBURG

EX PARTE RICHARD MARTINEZ

On appeal from the 94 th District Court of Nueces County, Texas.



## MEMORANDUM OPINION
Before Justices Garza, Vela, and Perkes Memorandum Opinion by Justice Vela Applicant, Richard Martinez, was indicted for attempted sexual assault. See T EX

. P ENAL C ODE A NN . § 15.01(a) (West 2003), § 22.011(a) (West Supp. 2010). On January 17, 2008, he pleaded guilty to the offense, the trial court found him guilty of the offense, and sentenced him to six years’ imprisonment , but suspended the sentence and placed
him on community supervision for six years. Thereafter, pursuant to the State’s motion,2

the trial court revoked Martinez’ community supervision. However , w hile on community supervision, Martinez filed an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure . After an evidentiary hearing, the trial court denied relief. In three issues, Martinez argues: (1) he is actually innocent of the offense; (2) his plea was involuntary; and (3) he received ineffective assistance of counsel. We dismiss the appeal for want of jurisdiction.
I. J URISDICTION On December 11, 2009, Martinez filed an “APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07” (the Application) with the clerk of the convicting court in the above

- referenced c ase. On January 14, 2010, the trial c ourt held a hearing on the Application and denied relief. This Court has received and filed the following items: (1) the clerk’s record, which includes a copy of the Application as well as a copy of the order denying relief; (2) the reporter’s records of the plea hearing, the hearing on the motion for new trial, and the hearing on the Application; and (3) the appellate briefs. Our court of criminal appeals has stated th at “[a] writ application under a rticle 11.07 of t he Texas Code of Criminal Procedure may only be used to challenge a final conviction.” Ex parte Hiracheta , 307 S.W.3d 323, 325 (Tex. Crim. App. 2010) (citing Ex parte Renier

, 734 S.W.2d 349 (Tex. Crim. App. 1987) (dismissing an application regarding commu nity supervision brought under art. 11.07 for failing to comply with jurisdictional requisites to granting relief, that is, “a final felony conviction”)).3

We need not decide whether Martinez’s conviction is final because intermediate appellate courts do no t have jurisdiction over writs of habeas corpus filed under Article 11.07 of the Texas Code of Criminal Procedure. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 11.07, § 3(a ) (West 2010) (stating that “the writ [filed under Article 11.07] must be made
returnable to the Court of Criminal Appeals of Texas at Austin, Texas.”); § 3(c) (stating “it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant’s confinement. . . . If the convicting court decides that there are no such issues, the clerk shall immediately transmit to the Court of Criminal Appeals a copy of the application, . . . .”); see also Ex parte Mendenhall , 209 S.W.3d 260, 261 (Tex. App.

– Waco 2006, orig

. proceeding).
II. C ONCLUSION We dismiss the appeal for want of jurisdiction.

ROSE VELA Justice Do not publish. T EX

. R. A PP

. P. 47.2(b). Delivered and filed the 28th day of April, 201 1

.