CourtListener 9469283•Ex Parte Elbert Perry Jr. v. the State of Texas
Full text
In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-23-00378-CR
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EX PARTE ELBERT PERRY JR.
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On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. F11-13027-B
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MEMORANDUM OPINION
Elbert Perry Jr. filed a notice of appeal from a final order denying
his application for a writ of habeas corpus. We questioned our
jurisdiction. Perry did not file a response.
In its order denying the application for a writ of habeas corpus, the
trial court noted that Perry has a final felony conviction for which he is
serving a sentence in the Institutional Division of the Texas Department
of Criminal Justice and that his conviction and sentence have been
1
affirmed on appeal. 1 Perry applied for habeas relief directly from the trial
court under article 11.05 of the Texas Code of Criminal Procedure, he did
not file a post-conviction writ application returnable to the Court of
Criminal Appeals under article 11.07 of the Texas Code of Criminal
Procedure. 2 In its order, the trial court stated that Perry’s writ
application presents complaints regarding parole and mandatory
supervision, commented that applications addressing parole or
mandatory supervision should be brought under article 11.07, and denied
Perry’s application for a writ of habeas corpus under article 11.05.
When the trial court doesn’t address the application’s merits when
the court denies the defendant’s application for a writ of habeas corpus,
the defendant has no right to appeal. Ex parte Hargett, 819 S.W.2d 866,
869 (Tex. Crim. App. 1991); Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex.
App.–Austin 2000, pet. ref’d). Here, no writ was issued, the trial court did
not hold an evidentiary hearing on the application, and the trial court
denied the application without addressing or ruling on the merits of
1See generally Perry v. State, No. 09-12-00054-CR, 2013 WL 3487343 (Tex.
App.—Beaumont July 10, 2023, no pet.) (mem. op., not designated for publication).
2Compare Tex. Code Crim. Proc. Ann. art. 11.05, with Tex. Code Crim. Proc.
Ann. art. 11.07.
2
Perry’s complaints. Accordingly, we dismiss the appeal for lack of
jurisdiction. See Tex. R. App. P. 43.2(f).
APPEAL DISMISSED.
PER CURIAM
Submitted on January 23, 2024
Opinion Delivered January 24, 2024
Do Not Publish
Before Horton, Johnson and Wright, JJ.
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