AFFIRMED and Opinion Filed August 17, 2018




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01422-CR

                               EX PARTE HOWARD HOLLAND

                       On Appeal from the 422nd Judicial District Court
                                   Kaufman County, Texas
                             Trial Court Cause No. 29317A-422

                               MEMORANDUM OPINION
                            Before Justices Bridges, Evans, and Whitehill
                                    Opinion by Justice Whitehill
       Howard Holland appeals the trial court’s order denying relief on his post-conviction

application for writ of habeas corpus related to his burglary of a habitation conviction. In three

issues, he urges that the trial court erred in (i) concluding that defects in his indictment were not

cognizable in this habeas proceeding, (ii) rejecting his argument that the State failed to introduce

sufficient evidence of his guilt, and (iii) not finding that he established ongoing collateral

consequences from his conviction. We address his third issue first, and we affirm because

appellant did not establish any ongoing collateral consequences of his conviction as would be

needed to support trial court jurisdiction over his writ application.

       We also hold that (i) the trial court did not err in concluding the alleged defects in

appellant’s indictment were not cognizable in the habeas proceeding; and (ii) we need not address

appellant’s second issue.

       Accordingly, we affirm the trial court’s judgment.
                                         I. BACKGROUND

       On December 16, 2010, appellant was indicted for the offense of burglary of a habitation.

The indictment was captioned “Burglary of a Habitation,” and it stated the offense was a second-

degree felony, referencing “TPC § 30.02(c)(2).” Penal code § 30.02(c)(2) provides that a burglary

is a second-degree felony if committed in a habitation. TEX. PENAL CODE § 30.02(c)(2). The body

of the indictment, however, did not mention a habitation. Instead, it charged appellant did

“intentionally or knowingly enter a building or a portion of a building without the effective consent

of [the complainant], the owner thereof, and attempted to commit or committed theft of property,

to-wit: a computer, owned by [the complainant].” The burglary statute provides that, subject to a

couple of immaterial exceptions, the burglary of a building that is not a habitation is a state jail

felony. See id. § 30.02(c)(1).

       Appellant negotiated a plea bargain with the State under which the State recommended he

receive a punishment of five years imprisonment, probated for five years, and pay restitution. The

plea agreement contained a written punishment admonition from the trial court advising appellant

that he was charged with burglary of a habitation, his offense was a second-degree felony, and

setting forth the punishment range for a second-degree felony. The plea agreement also contained

a section titled “Defendant’s Statements and Waivers” in which appellant represented that he

understood “the nature of the accusation made against” him; waived his right to be tried on an

indictment; and waived “any and all defects, errors, or irregularities, whether of form or substance,

in the charging instrument. . . .” Appellant further agreed to the oral or written stipulation of

testimony and to “waive any and all objections to the admission of the Stipulation of Evidence

submitted as evidence submitted to the Court.” Appellant waived his right to appeal in writing.

The Stipulation of Evidence appellant signed represented that appellant did “Commit the

offense(s) as alleged in the above-referenced cause number.”

                                                –2–
       On January 24, 2011, appellant was convicted, on his negotiated guilty plea, of burglary of

a habitation. Pursuant to the plea agreement, the trial court assessed punishment at five years’

imprisonment, probated for five years, and ordered appellant to pay restitution. Appellant did not

appeal his conviction. Appellant’s community supervision was not revoked, and he has been

discharged from community supervision.

       During the period of his community supervision, however, appellant was required to

provide a DNA sample for his community supervision officer. The DNA sample was entered into

the CODIS database which matches the DNA of convicted offenders against DNA samples

obtained from unsolved crimes. See TEX. GOV’T CODE § 411.141(1) (“CODIS” is acronym for

Combined DNA Index System sponsored by Federal Bureau of Investigation).

       Appellant’s DNA sample also matched a DNA sample from an unsolved 1997 aggravated

sexual assault case. According to the trial court’s’ findings in the burglary case, the Terrell Police

Department then obtained a search warrant and took an additional DNA sample from appellant.

Based on the DNA matches, appellant was charged with aggravated sexual assault.

       Appellant entered a plea bargain agreement in the 1997 case under which he pled guilty to

the offense and admitted committing two other unadjudicated aggravated sexual assaults for the

trial court to consider in sentencing him in that case. See TEX. PENAL CODE § 12.45 (allowing

defendant, with State’s permission, to admit unadjudicated offenses to be considered in assessing

punishment). The trial court in that case assessed punishment at forty years’ imprisonment.

       In 2017, appellant filed an application for writ of habeas corpus concerning this burglary

case, contending that his conviction was void and violated his right to due process of law because

the indictment, lacking any accusation that he had entered a habitation, failed to charge him with

burglary of a habitation. Because the State failed to indict him for the correct burglary offense,

appellant contended, his sentence exceeded the maximum punishment available for burglary of a

                                                 –3–
building, and the State’s evidence, consisting solely of his stipulation and judicial confession

acknowledging he committed the offense as alleged, was both legally insufficient and constituted

no evidence satisfying the requirement that the State introduce evidence supporting his guilty plea

to burglary of a habitation. See TEX. CODE CRIM. PROC. art. 1.15.

       Although he had completed his ensuing community supervision, appellant contended that

the trial court retained jurisdiction to consider his habeas writ application because the conviction

exposed him to ongoing collateral consequences in that it (i) affected his prison job classification

and parole considerations in the aggravated sexual assault case, (ii) forced him to self-incriminate

himself with the taking of the DNA sample that led to his current confinement, and (iii) his burglary

of a habitation conviction was used as punishment evidence to assess punishment for the

aggravated sexual assault.

       The State responded and argued that (i) appellant failed to invoke the trial court’s

jurisdiction by establishing any ongoing collateral consequences, (ii) he waived any defects in the

indictment, (iii) his claim was not cognizable, (iv) the evidence was sufficient to support the

conviction, and (v) the sentence was proper.

       The trial court made findings of fact and conclusions of law that appellant was not subject

to any confinement or restraint and had not established any collateral consequences to his burglary

conviction and dismissed the writ for want of jurisdiction.

       The trial court also made alternative findings of fact and conclusions of law on which it

dismissed appellant’s claims regarding the defects in the indictment and the insufficiency of the

evidence to support the guilty plea, in the event “an appellate court determines that [the trial court]

has jurisdiction to consider the Writ”. It additionally denied as meritless appellant’s claims that

there was no evidence to support the guilty plea and that his sentence was void as outside the

punishment range. This appeal ensued.

                                                 –4–
                                     II. STANDARD OF REVIEW

       An applicant for post-conviction habeas corpus relief bears the burden of proving their

claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App.

2016). In reviewing the trial court’s order, we view the facts in the light most favorable to the trial

court’s ruling, and we uphold the ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006).

       When the underlying conviction results in community supervision, an ensuing post-

conviction writ must be brought pursuant to article 11.072 of the code of criminal procedure, and

the trial judge is the sole fact-finder. Torres, 483 S.W.3d at 42.

       When reviewing the trial court’s order denying habeas corpus relief, “we afford almost

total deference to a trial court’s factual findings when they are supported by the record, especially

when those findings are based upon credibility and demeanor.” Id. We defer to the trial court’s

ruling on mixed questions of law and fact, if the resolution of the ultimate question turns on an

evaluation of credibility and demeanor. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim.

App. 2014). If, however, the trial court’s determinations are questions of law, or else are mixed

questions of law and fact that do not turn on an evaluation of witnesses’ credibility and demeanor,

then we owe no deference to the trial court’s determinations and review them de novo. State v.

Ambrose, 487 S.W.3d 587, 596 (Tex. Crim. App. 2016).

                                  III. APPELLATE JURISDICTION

       Before addressing the merits of the appeal, we must first consider whether we have

jurisdiction to proceed. Appellant filed his writ application on a form designed for filing a writ

application pursuant to article 11.07 of the code of criminal procedure. See TEX. CODE CRIM.

PROC. art. 11.07; see also TEX. R. APP. P. 73.1. Because appellant was placed on community

supervision and his community supervision was never revoked, he may only pursue habeas relief

                                                 –5–
pursuant to code of criminal procedure article 11.072. See TEX. CODE CRIM. PROC. art. 11.072,

§1; Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008). This Court has jurisdiction

to review writ applications filed under article 11.072, but not writ applications filed under article

11.07. See arts. 11.07, §5, 11.072, §8.

          Recognizing that appellant had used the wrong form to file his writ application, the State—

in its response to the writ application—and the trial court—in its final order—both elected to treat

appellant’s writ application as filed under article 11.072. At least one appellate court has held, in

an unpublished opinion, that jurisdiction over the merits of an article 11.07 writ application is

conferred on the court of appeals where the parties and trial court have agreed to treat an 11.07

writ application as a writ application filed under article 11.072. See Ex parte Martinez, No. 13-

10-00085-CR, 2012 WL 1142882, at *1 n.1 (Tex. App.—Corpus Christi–Edinburg Apr. 5, 2012,

no pet.) (mem. op. on reh’g) (not designated for publication).1

          Mindful of the need to conserve judicial resources, appellant’s status as an incarcerated pro

se applicant with limited knowledge of the law, and our obligation to do substantial justice to the

parties, we will accept the characterization of the writ application adopted by the trial court and

the State and treat the appeal as arising from the denial of an article 11.072 writ application. See

TEX. R. APP. P. 31.2; Martinez, No. 13-10-00085-CR, 2012 WL 1142882, at *1 n.1. Because the

trial court denied relief, we have jurisdiction over the appeal. See art. 11.072, §8; Villanueva, 252

S.W.3d at 397.




   1
       Unpublished opinions have no precedential value but may be cited. TEX. R. APP. P. 47.7.

                                                                    –6–
                                           IV. ANALYSIS

A.      Appellant’s Third Issue: Did appellant establish continuing collateral consequences
        from his burglary of a habitation conviction that would support trial court
        jurisdiction of his habeas writ application?

        The trial court dismissed appellant’s writ application for want of jurisdiction on the ground

that appellant is not suffering any continuing restraint resulting from his burglary conviction. We

agree with the trial court, but take issue with the form of its final order.

        Appellant’s first and third issues concern the trial court’s jurisdiction. Appellant’s third

issue asserts that the trial court erred in finding that he had not established any collateral

consequences that would support the trial court’s jurisdiction over the habeas writ application.

Although appellant asserted a number of alleged collateral consequences in the trial court, he limits

his appellate argument to the taking of his DNA sample and its uploading to, and continued

presence within, the CODIS database.          Appellant urges that his current imprisonment for

aggravated sexual assault is an ongoing collateral consequence of his erroneous conviction for

burglary of a habitation because the burglary conviction caused the taking of his DNA sample and

the resulting CODIS match. Appellant also alleges that, if the DNA profile is available in the

database for testing, he may be subject to future arrests and convictions for other offenses he may

have committed or will commit. We disagree because the taking of appellant’s DNA was a direct

consequence of his conviction that has been completed and any further consequences do not arise

from appellant’s burglary conviction.

        Habeas corpus is a remedy available to applicants who are “restrained in their liberty.” See

TEX. CODE CRIM. PROC. art. 11.01. The concept of “restraint” justifying the remedy is broader

than actual physical restraint. It encompasses not only confinement or physical custody, but also

current and potential collateral consequences resulting from the conviction.          See Ex parte

Harrington, 310 S.W.3d 452, 457–58 (Tex. Crim. App. 2010); see also TEX. CODE CRIM. PROC.


                                                  –7–
ANN. arts. 11.21–23 (expanding scope of custody for purposes of writ to include various forms of

constructive custody and restraint).

       Although Harrington addressed the need for collateral consequences for jurisdiction over

an article 11.07 writ application, the same requirement applies to article 11.072 writs. See Ex parte

Glass, 203 S.W.3d 856, 857 (Tex. Crim. App. 2006) (Johnson, J., concurring) (concurring with

dismissal of article 11.072 writ application in part because applicant failed to plead collateral

consequences to justify jurisdiction over writ application to challenge conviction where sentence

had long been discharged); Ex parte Ali, 368 S.W.3d 827, 831–33 (Tex. App.—Austin 2012, pet.

ref’d) (applicant was subject to continued restraint despite completing community supervision

where he was subject to potential deportation proceedings); Ex parte Wolf, 296 S.W.3d 160, 166–

67 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (applicant’s inability to obtain employment

in banking and securities industries was collateral consequence of theft conviction thus enabling

habeas jurisdiction even though applicant had completed community supervision); see also Ex

parte Tamayo, No. 02-17-00135-CR, 2017 WL 6047731, at *3–4 (Tex. App.—Fort Worth Dec.

7, 2017, no pet.) (not designated for publication) (appeal of applicant’s 11.072 writ application not

rendered moot by his deportation because deportation and inability to reenter the United States are

collateral consequences of his guilty plea).

       Here, the trial court found that appellant’s DNA was taken in 2011, the act of taking it was

a single act wholly completed in 2011, and appellant “does not remain subject to any continuing

requirement to have his DNA taken.” The trial court further found that “[t]he CODIS match that

followed the taking of [appellant’s] DNA was obtained in the past in a completed series of events,

and it is not a collateral consequence that has continued or will arise at some time beyond the

serving of [appellant’s] sentence” for burglary. The trial court thus both found and concluded that

taking appellant’s DNA was not a collateral consequence of his conviction.

                                                –8–
       At the time appellant’s DNA sample was taken, article 42.12, section 11(j) provided:

       A judge granting community supervision to a defendant convicted of a felony shall
       require as a condition of community supervision that the defendant provide a DNA
       sample under Subchapter G, Chapter 411, Government Code, for the purpose of
       creating a DNA record of the defendant, unless the defendant has already submitted
       the required sample under other state law.

See Act of May 30, 2009, 81st Leg., R.S., ch. 1209, § 6, 2009 TEX. GEN. LAWS 3865, 3867 codified

at TEX. CODE CRIM. PROC. art. 44.12(11)(j)) (repealed and recodified without change, effective

Jan. 1, 2017) (current version at TEX. CODE CRIM. PROC. art. 42A.352).

       Although appellant concedes that his DNA was taken while he was serving his term of

community supervision, he rejects the premise that the DNA sample was taken pursuant to former

article 42.12, section 11(j), because he contends that providing a DNA sample was not part of his

probation conditions and the conditions were never modified. Appellant contends instead that his

DNA was taken pursuant to section 411.1471 of the government code, which requires the trial

court to obtain a DNA sample from defendants indicted for a list of offenses and provide the

sample to law enforcement “for the purpose of creating a DNA record.” See TEX. GOV’T CODE §

411.1471(a-b).

       As appellant asserts, burglary of a habitation is an offense for which a DNA sample must

be taken under section 411.1471, but burglary of a building is not. See id. Appellant contends that

taking his DNA sample when such was not included within his conditions of community

supervision deprived him of due process of law. Appellant further asserts that his current

incarceration for aggravated sexual assault is therefore an ongoing collateral consequence of the

taking of his DNA in the first instance. Appellant further alleges that his probation file, which is

not part of the record on appeal, would show that the statutory procedure for obtaining a mandatory

DNA sample from a probationer was not followed in violation of his due process rights.




                                                –9–
       Nothing in the record supports appellant’s theory that his DNA was taken pursuant to

section 411.1471 or that his rights were violated. All parties agree that the DNA sample at issue

was taken while appellant was on community supervision, not immediately after his arrest or

indictment. Because burglary of a habitation and burglary of a building are both felony offenses,

appellant’s placement on community supervision triggered a mandatory requirement that he

submit a DNA sample for inclusion in CODIS regardless of whether he was convicted of burglary

of a habitation or burglary of a building. See TEX. CODE CRIM. PROC. art. 44.12(11)(j)) (repealed

2017) (current version at TEX. CODE CRIM. PROC. art. 42A.352).

       Moreover, because taking appellant’s DNA for inclusion in the DNA database was a

mandatory condition of community supervision, appellant has not established an ongoing

collateral consequence that affects him. If a consequence is definite and largely or completely

automatic, it is a direct consequence. Mitschke v. State, 129 S.W.3d 130, 135 (Tex. Crim. App.

2004). A direct consequence is one that is a definite, practical consequence of the defendant’s

plea. Id. In contrast, a collateral consequence is one in which the consequence lies within the

discretion of the trial court whether to impose it or its imposition is controlled by some agency

operating outside the trial court’s control. Id. at 134 n. 4.

       We agree with the trial court that the taking of a DNA sample in 2012 is an accomplished,

mandatory event over which the trial court had no discretion.         Moreover, it was a direct

consequence of appellant’s conviction and placement on community supervision rather than a

collateral consequence. See id. at 134 n. 4, 135.

       Appellant also asserts that the continued use of his DNA sample in the CODIS database is

an ongoing collateral consequence in that he might be subject to future arrests and prosecutions if

his DNA sample is used and matches additional profiles from other offenses he has either




                                                 –10–
committed or will commit in the future. We disagree. The continued use of appellant’s DNA

sample in CODIS does not depend in any manner upon his burglary conviction.

       In Ex parte Cook, a habeas applicant was placed on deferred adjudication in Tarrant County

for a family violence assault offense and subsequently adjudicated after he committed a new family

violence assault in Hood County. See Ex parte Cook, 471 S.W.3d 827, 828 (Tex. Crim. App.

2015). Subsequently, he filed a habeas application contending that the Tarrant County conviction

was invalid because it relied for enhancement on a New Mexico conviction that was unavailable

for enhancement purposes under the version of the family-violence statute in effect at the time. Id.

at 831. Although the Tarrant County sentence had already been served, the applicant asserted his

writ application was still cognizable because the Tarrant County offense was used to enhance the

Hood County family-violence offense. Id. at 828. The court of criminal appeals disagreed and

dismissed the writ application because the Hood County case had used the Tarrant County deferred

adjudication as the ground for enhancement, while appellant was now contending the subsequent

Tarrant County conviction was invalid. See id. at 832. The court reasoned “[b]ecause the final

conviction that applicant here challenges was not the source of the Hood County enhancement, the

Hood County enhancement is not a collateral consequence of that conviction.” Id.

       Similar to Cook, appellant is complaining about the wrong step in the process. Appellant’s

burglary conviction and placement on community supervision led to the direct consequence of

having his DNA sample taken and submitted to CODIS. Once the sample was uploaded to CODIS,

whatever further consequences may flow from that arise independently from the burglary

conviction as a collateral consequence of the taking of his DNA sample, an event appellant did not

contest and appeal. See Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999) (requiring, in

most instances, probationer to object in trial court to condition of community supervision to

preserve issue for appeal).

                                               –11–
           Furthermore, even if we were to accept the premise of appellant’s argument and could, in

some manner, order the withdrawal of appellant’s DNA sample from the CODIS database,

appellant, as an incarcerated prisoner, would still be required to submit a new DNA sample for

inclusion in the database. See TEX. GOV’T CODE § 411.148.2

           Finally, we must also reject appellant’s argument that his current imprisonment is a

collateral consequence of his burglary conviction. Appellant is in prison because he pled guilty to

committing aggravated sexual assault in a case that is not before this Court. To the extent appellant

desires to contest the validity of his current imprisonment, he must do so in an 11.07 writ over

which we do not have jurisdiction. See TEX. CODE CRIM. PROC. ANN. art. 11.07 §1.

           We conclude that appellant has not shown the trial court erred in determining that he did

not establish any ongoing collateral consequences arising from his burglary conviction. We

overrule appellant’s third issue.

B.         Appellant’s First Issue: Did the trial court err by concluding that the alleged defects
           in appellant’s indictment were not cognizable in this habeas proceeding?

           Appellant’s first issue argues that the trial court erred in dismissing his writ application for

want of jurisdiction on the ground that the alleged indictment defects were not cognizable in this

case. Specifically, appellant contends that the trial court had jurisdiction to consider his complaint

because the writ application and accompanying memorandum of law showed that the indictment

as charged did not contain all of the elements of burglary of a habitation and thus the trial court

was without jurisdiction to accept the plea agreement between appellant and the State. He further

urges that he may raise a collateral attack on the jurisdictional defect and the legal insufficiency of

the indictment at any time.




     2
       We note that although appellant must demonstrate the existence of collateral consequences to establish jurisdiction, he need not show that
habeas relief would remove the collateral consequences. See Ex parte Shay, 507 S.W.3d 731, 733 (Tex. Crim. App. 2016).

                                                                    –12–
       We construe appellant’s issue to attack the trial court’s findings of fact and legal

conclusions that appellant’s challenge to defects in the indictment had been waived and was not

cognizable. The State responds that appellant waived his complaint about the indictment both by

failing to object to the indictment and by waiving defects in the indictment as part of his plea

agreement. We agree with the State.

       The code of criminal procedure provides that:

       If the defendant does not object to a defect, error, or irregularity of form or
       substance in an indictment or information before the date on which the trial on the
       merits commences, he waives and forfeits the right to object to the defect, error, or
       irregularity and he may not raise the objection on appeal or in any other
       postconviction proceeding.”

TEX. CODE CRIM. PROC. art. 1.14(b).

       The legislature added this provision to the code of criminal procedure as part of a package

of constitutional and statutory reforms in 1985 designed to prevent the very type of challenge

appellant seeks to make in this case. See Teal v. State, 230 S.W.3d 172, 176–79 (Tex. Crim. App.

2007). Here, appellant did not object to the alleged defect in the indictment in the trial court and,

in fact, waived as part of his plea bargain any “defects, errors, or irregularities” in the indictment.

       Absent an objection, a defendant may raise an issue about defects in an indictment only if

the indictment is so fundamentally deficient that it fails to vest the trial court with jurisdiction. Ex

parte Reedy, 282 S.W.3d 492, 502 (Tex. Crim. App. 2009). When considering whether an

indictment confers jurisdiction upon a court, we look to the indictment as a whole, including the

heading to determine if the indictment is clear enough to identify the offense alleged. See

Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009).

       Here, although the body of the indictment failed to specifically describe the structure

appellant entered as a habitation, the heading of the indictment identified the offense as “burglary

of a habitation, the indictment referenced “TPC § 30.02(c)(2),” the portion of the burglary statute

                                                 –13–
that addresses penalties for burglary of a habitation, and the indictment describes the offense as a

second-degree felony, the penalty for burglary of a habitation. Compare TEX. PENAL CODE

§30.02(c)(1) (describing burglary offense as a state jail felony if committed in a building other

than a habitation with id. § 30.02(c)(2) (describing burglary offense as a second-degree felony if

committed in a habitation). Furthermore, appellant concedes in his writ application that he was

convicted of burglary of a habitation. We thus conclude the trial court did not abuse its discretion

in determining that appellant’s issue regarding defects in the indictment was not cognizable and

had been waived. See Reedy, 282 S.W.3d at 502; Kirkpatrick, 279 S.W.3d at 328. We overrule

appellant’s first issue.

C.      Appellant’s Second Issue: Did the trial court err by denying his insufficient evidence
        complaint?

        Having overruled both of appellant’s issues asserting the trial court erred in concluding it

lacked jurisdiction, we need not consider appellant’s second issue which addresses the merits of

his writ application.

                                     V. FORM OF THE ORDER

        Having disposed of the arguments appellant raised to contest the trial court’s assessment

of its jurisdiction, we address the trial court’s “dismissal” of appellant’s writ application. Article

11.072 is the exclusive means by which a district court may exercise habeas jurisdiction over a

person who is convicted and either on community supervision or who has completed community

supervision. See TEX. CODE CRIM. PROC. art. 11.072 §§ 1, 2; Villanueva, 252 S.W.3d at 397. In

entertaining a habeas application filed under article 11.072, “the trial court shall enter a written

order granting or denying the relief sought in the application.” See 11.072, §6(a).

        The trial court’s options are to (1) determine that the applicant is “manifestly entitled to no

relief” and deny the application as frivolous, or (2) to address the merits of the application and

enter a written order making findings of fact and conclusions of law. See id. at §7(a); Ex parte

                                                –14–
Baldez, 510 S.W.3d 492, 495 (Tex. App.—San Antonio 2014, no pet.) (discussing the two options

trial court has for disposing of article 11.072 writ application). The statute does not provide an

option for the trial court to dismiss the application for want of jurisdiction. See Ex parte Cozzi,

138 S.W.3d 454, 454–55 (Tex. App.—Fort Worth 2004, pet ref’d); see also Ex parte Ali, No. 03-

10-00206-CR, 2010 WL 5376860, at *2 (Tex. App.—Austin Dec. 16, 2010, no pet.) (mem. op.)

(not designated for publication) (reversing and remanding causes for noncompliance with article

11.072 where trial court denied relief without addressing merits of writ applications).

       The trial court concluded that it had no jurisdiction, but it did not conclude, as it should

have, that appellant was manifestly entitled to no relief and deny appellant’s writ application as

frivolous. See article 11.072, §7(a). Instead, the trial court dismissed the writ application and

issued an alternate ruling in which it formulated findings of fact and conclusions of law. See id.;

Baldez, 510 S.W.3d at 495.

       Because we conclude appellant’s application should have been denied as frivolous, we

cannot conclude appellant suffered any harm from the trial court’s improper formulation of its

order or that the trial court’s order affected his substantial rights. See TEX. R. APP. P. 44.2(b).




                                                –15–
                                        VI. DISPOSITION

       We conclude that appellant has not met his burden to show the trial court erred or abused

its discretion in denying relief on his application for writ of habeas corpus. See Torres, 483 S.W.3d

at 43; Kniatt, 206 S.W.3d at 664.

       Accordingly, we affirm the trial court’s order.




                                                   /Bill Whitehill/
                                                   BILL WHITEHILL
                                                   JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)
171422F.U05




                                               –16–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 EX PARTE HOWARD HOLLAND                              On Appeal from the 422nd Judicial District
                                                      Court, Kaufman County, Texas
 No. 05-17-01422-CR                                   Trial Court Cause No. 29317A-422.
                                                      Opinion delivered by Justice Whitehill.
                                                      Justices Bridges and Evans participating.

       Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellant’s application for writ of habeas corpus is AFFIRMED.


Judgment entered August 17, 2018.




                                               –17–
