Motion Granted; Dismissed and Memorandum Opinion filed May 15, 2012.

In The

Fourteenth Court of Appeals 

___________________

NO. 14-12-00298-CR

___________________

EX PARTE BERNARD MARIO CLARK

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 06-DCR-044740A

M E M O R A N D U M O P I N I O N

This is an attempted out-of-time appeal from the denial of habeas corpus relief by 

the Texas Court of Criminal Appeals on September 21, 2011. Appellant’s notice of appeal 

was not filed until March 16, 2012. The State has filed a motion to dismiss the appeal for 

want of jurisdiction.

Appellant was convicted of aggravated assault with a deadly weapon in 2007 and 

sentenced to 45 years in prison. See Clark v. State, No. 14-08-00025-CR, 2008 WL 544187 

(Tex. App.—Houston [14th Dist.] Dec. 30, 2008, pet. ref’d) (not designated for 

publication). This court affirmed his conviction on direct appeal, and the Texas Court of 

Criminal Appeals refused his petition for discretionary review. Id. Not only is appellant’s 

notice of appeal untimely, this court lacks jurisdiction over an appeal from a 
2

post-conviction application for writ of habeas corpus on a final felony conviction. Only the 

Texas Court of Criminal Appeals has jurisdiction over matters related to post-conviction 

relief from a final felony conviction. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 

243 (Tex. 1991); see also Tex. Code Crim. Proc. art. 11.07; Board of Pardons & Paroles ex 

rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App.

1995) (holding that article 11.07 provides the exclusive means to challenge a final felony 

conviction).

In addition to dismissal of the appeal, the State requests that we determine that this 

appeal is frivolous, as set out in Section 498.0045 of the Texas Government Code. 1“[A]n 

application for writ of habeas corpus is considered ‘frivolous’ if brought for the purpose of 

abusing judicial resources.” Tex. Gov’t Code § 498.0045(a-1). Earlier this year, appellant 

attempted to appeal the trial court’s order from the same writ proceeding. See Clark v. 

State, No. 14-12-00091-CR, 2012 WL 681818 (Tex. App.—Houston [14th Dist.] Mar. 1, 

2012, no pet.) (not designated for publication) (dismissing the appeal for want of 

jurisdiction). In that opinion, the court clearly stated that “only the Court of Criminal 

Appeals has jurisdiction to review post-conviction habeas corpus proceedings.” Id. at *1. 

Appellant has filed a second appeal in this court from the same post-conviction 

habeas proceeding after being informed that we lack jurisdiction. In addition, it appears 

from the documents filed with this court that appellant has filed more than one writ 

application with the Texas Court of Criminal Appeals.2 Furthermore, the federal court also 

denied a habeas application. See Clark v. Thaler, No. H-10-3035, 2011 WL 1885181 (S.D. 

Tex. May 18, 2011) (not designated for publication).

 

1

 The statute was amended in 2005 to apply to proceedings arising from an application for writ of 

habeas corpus. 

2

 Appellant included with his notice of appeal a copy of the notice from the Texas Court of 

Criminal Appeals that his “subsequent” habeas application was dismissed. 
3

Accordingly, we grant the State’s motion. We determine that this appeal is frivolous 

as defined in Section 498.0045 of the Texas Government Code. Tex. Gov’t Code § 

498.0045(a-1). We order the appeal dismissed as frivolous.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).