COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-15-00051-CR

DANIELLE FLORES APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. F-2012-0337-D

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MEMORANDUM OPINION1

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Appellant Danielle Flores pleaded guilty to forgery in exchange for three 

years of deferred adjudication community supervision and a $750 fine, among 

other terms and conditions, and the State subsequently filed a motion to proceed 

with the adjudication of her guilt. Several months elapsed after the trial court 

adjudicated Flores guilty and sentenced her to fifteen months’ confinement in 

 

1See Tex. R. App. P. 47.4.
2

state jail without the filing of a notice of appeal. See Tex. R. App. P. 26.2(a), 

26.3. Flores then filed in the trial court a motion to substitute counsel and a 

motion for an out-of-time appeal, in which she complained that her counsel had 

failed to timely file her notice of appeal.2The trial court granted both motions. 

We gave the parties an opportunity to explain how we have jurisdiction over the 

appeal, and Flores filed a response, referring this court to code of criminal 

procedure article 11.05 and article V, section 8 of the Texas constitution.3 See

Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann. art. 11.05 (West 2015).

The exclusive post-conviction remedy in final felony convictions in Texas 

courts is through a writ of habeas corpus pursuant to code of criminal procedure 

article 11.07. Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015); Ater v. Eighth 

Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (“We are the only 

court with jurisdiction in final post-conviction felony proceedings.”); see also Parr 

v. State, 206 S.W.3d 143, 144 (Tex. App.—Waco 2006, no pet.).4 Compare 

 

2

Flores filed a petition for writ of habeas corpus in the trial court on 

February 5, 2015, referring the trial court to code of criminal procedure articles 

11.05 and 11.08. 

3

Flores alternatively requests that if we find that we do not have 

jurisdiction, to hold any dismissal in abeyance for sixty days so that she can 

pursue a remedy under article 11.07. 

4

In Parr, after Parr failed to timely file a notice of appeal from his felony 

conviction, he filed an application for writ of habeas corpus under code of 

criminal procedure article 11.05 and article V, section 8 of the state constitution, 

seeking an out-of-time appeal. 206 S.W.3d at 144. The trial court granted the 

request. Id. The Waco court dismissed the appeal for want of jurisdiction 

because the trial court did not have the authority under an application filed under 
3

Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996) (stating that the 

exclusive post-conviction remedy in final felony convictions in Texas courts is 

through a writ of habeas corpus under article 11.07), with Nix v. State, 65 S.W.3d 

664, 669 (Tex. Crim. App. 2001) (explaining that because probation is not 

considered to be a “final” conviction, an application for writ of habeas corpus filed 

during the pendency of revocation proceedings is returnable to the trial court, 

whose ruling is reviewable by the court of appeals and subject to a petition for 

discretionary review in the court of criminal appeals), Rodriguez v. Court of 

Appeals, Eighth Supreme Jud. Dist., 769 S.W.2d 554, 557, 559 (Tex. Crim. App. 

1989) (orig. proceeding) (stating that when a defendant has been granted 

probation that has not been revoked, he or she can use article V, section 8 of the 

state constitution and code of criminal procedure articles 11.05 and 11.09 to seek 

relief in the district court and that article 11.07 applies “only where a defendant is 

‘confined’ pursuant to a final felony conviction”), and Ex parte Simpson, 260 

S.W.3d 172, 174 (Tex. App.—Texarkana 2008, pet. ref’d) (explaining the 

difference between habeas applications filed after a felony defendant has been 

 

either of those provisions to grant an out-of-time appeal when Parr was confined 

under a final conviction. Id. at 144–45. Parr’s exclusive remedy was under 

article 11.07. Id. at 145 (stating that an article 11.07 writ “must be made 

returnable to the Court of Criminal Appeals because that court has the exclusive 

authority to grant post-felony conviction relief, such as an out-of-time appeal, if 

the defendant is then confined as a result of that final felony conviction”). The 

court of criminal appeals subsequently granted Parr an out-of-time appeal. Ex 

parte Parr, No. AP-75713, 2007 WL 1776006, at *1 (Tex. Crim. App. June 20, 

2007) (not designated for publication).
4

adjudged guilty and sentenced to a term of incarceration under article 11.07 and 

habeas applications filed during the pendency of either a revocation or an 

adjudication proceeding). 

Here, the trial court did not have the authority to grant Flores’s motion for 

an out-of-time appeal. See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(c); Ex 

parte Harrington, 310 S.W.3d 452, 457 (Tex. Crim. App. 2010); Parr, 206 S.W.3d 

at 145; see also Ex parte Williams, 239 S.W.3d 859, 861–62 (Tex. App.—Austin 

2007, no pet.) (explaining that the habeas application under article 11.07 is filed 

in the district court but that the district court does not decide the merits of the 

application; instead, it determines whether there are unresolved fact issues, 

makes any necessary fact findings, and forwards the record to the court of 

criminal appeals for a final ruling on the application). Because her notice of 

appeal was untimely, we dismiss the appeal for want of jurisdiction and deny 

Flores’s alternative request for abatement. See Castillo v. State, 369 S.W.3d 

196, 198 (Tex. Crim. App. 2012).

/s/ Bonnie Sudderth

BONNIE SUDDERTH

JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: October 29, 2015