                                   NO. 07-08-0104-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                    MARCH 6, 2008

                         ______________________________


                    EX PARTE ROBERTO RUBIO MONTENEGRO

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


       By this original proceeding, Roberto Rubio Montenegro seeks permission to proceed

in filing a second writ of habeas corpus pursuant to article 11.59 of the Texas Code of

Criminal Procedure due to newly discovered evidence.1 We dismiss for want of jurisdiction.


       Montenegro’s motion to file a second writ is based on his assertion that the

sentence he received for driving while intoxicated, third offense or more, was unauthorized

by law. Montenegro concludes by praying that his motion be granted or alternatively, that

he be released from illegal confinement.



      1
      Although Montenegro’s document is titled “Notice of Appeal,” the substance of the
document expresses an intent to seek extraordinary relief.
      Article 11.05 of the Texas Code of Criminal Procedure lists the courts which are

authorized to issue writs of habeas corpus. Absent from that list are courts of appeals.

See Watson v. State, 96 S.W.3d 497, 500 (Tex.App.–Amarillo 2002, pet. ref’d); Greenville

v. State, 798 S.W.2d 361, 362 (Tex.App.–Beaumont 1990, no pet.). This Court's habeas

corpus jurisdiction in criminal matters is appellate only. Denby v. State, 627 S.W.2d 435

(Tex.App.--Houston [1st Dist.] 1981, orig. proceeding), cert. denied, 462 U.S. 1110, 103

S.Ct. 2461, 77 L.Ed.2d 1338 (1983).


      Article 11.59 does not prohibit a trial court from entertaining a motion for a second

application for a writ of habeas corpus. See Ex parte Vance, 608 S.W.2d 681, 682

(Tex.Crim.App. 1980).


      Consequently, this Court has no authority to consider the relief sought by

Montenegro and we dismiss this proceeding for want of jurisdiction.



                                                Patrick A. Pirtle
                                                    Justice




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