
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-09-00626-CR



Ex parte Pedro Palomo Lucio





FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-89-0437, HONORABLE GARY L. STEEL, JUDGE PRESIDING



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

Pedro Palomo Lucio seeks to appeal the district court's order denying relief on a writ
of habeas corpus.  Because the district court was not authorized to consider the merits of Lucio's writ
application, we will dismiss the appeal.
In April 1990, Lucio pleaded guilty to theft in the cause referenced above.  He was
adjudged guilty and sentenced to five years' imprisonment as called for in a plea bargain agreement. 
In his pro se writ application filed February 9, 2009, Lucio sought to have this conviction set
aside on the ground that he did not waive his right to have punishment assessed by a jury.  On
September 28, 2009, the district court denied relief, and appellant gave notice of appeal to this Court.
Lucio's writ application purports to invoke the district court's habeas corpus
jurisdiction under article V, section 8 and article 11.05.  Tex. Const. art. V, § 8; Tex. Code Crim.
Proc. Ann. art. 11.05 (West 2005).  A person who is not in custody but who is experiencing some
adverse collateral consequence as a result of a final felony conviction may seek habeas corpus relief
from the district court pursuant to article V, section 8.  Ex parte Williams, 239 S.W.3d 859, 861
(Tex. App.--Austin 2007, no pet.).  But if a person is in custody, article 11.07 governs the procedure
by which he may seek post-conviction habeas corpus relief from a final felony conviction.  Id.
at 861-62; see Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2009).  That Lucio has fully
discharged his sentence in cause number CR-89-0437 does not render article 11.07 inapplicable
because Lucio remains in prison.   Article 11.07 applies when the applicant is in custody pursuant
to a felony conviction, even if it is not the conviction challenged.  Williams, 239 S.W.3d at 862. 
Because Lucio is in custody pursuant to a felony conviction, exclusive habeas corpus
jurisdiction has been given to the court of criminal appeals by article 11.07.  Tex. Code Crim. Proc.
Ann. art. 11.07, §§ 3(a), 5.  Under that statute, the habeas corpus application is filed in the district
court, but that court does not decide the merits of the application.  Instead, the district court makes
any necessary findings of fact and forwards the record to the court of criminal appeals for a final
ruling on the application for relief.  Id. §§ 3(c), (d), 5.
The appeal is dismissed.


				___________________________________________
				Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed:   May 14, 2010
Do Not Publish
