Motion Granted; Dismissed and Memorandum Opinion filed May 15, 2012.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-12-00298-CR
                                 ___________________

                        EX PARTE BERNARD MARIO CLARK


                        On Appeal from the 268th District Court
                               Fort Bend County, Texas
                        Trial Court Cause No. 06-DCR-044740A


                        MEMORANDUM                  OPINION

       This is an attempted out-of-time appeal from the denial of habeas corpus relief by
the Texas Court of Criminal Appeals on September 21, 2011. Appellant’s notice of appeal
was not filed until March 16, 2012. The State has filed a motion to dismiss the appeal for
want of jurisdiction.

       Appellant was convicted of aggravated assault with a deadly weapon in 2007 and
sentenced to 45 years in prison. See Clark v. State, No. 14-08-00025-CR, 2008 WL 544187
(Tex. App.—Houston [14th Dist.] Dec. 30, 2008, pet. ref’d) (not designated for
publication). This court affirmed his conviction on direct appeal, and the Texas Court of
Criminal Appeals refused his petition for discretionary review. Id. Not only is appellant’s
notice of appeal untimely, this court lacks jurisdiction over an appeal from a
post-conviction application for writ of habeas corpus on a final felony conviction. Only the
Texas Court of Criminal Appeals has jurisdiction over matters related to post-conviction
relief from a final felony conviction. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241,
243 (Tex. 1991); see also Tex. Code Crim. Proc. art. 11.07; Board of Pardons & Paroles ex
rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App.
1995) (holding that article 11.07 provides the exclusive means to challenge a final felony
conviction).

        In addition to dismissal of the appeal, the State requests that we determine that this
appeal is frivolous, as set out in Section 498.0045 of the Texas Government Code. 1 “[A]n
application for writ of habeas corpus is considered ‘frivolous’ if brought for the purpose of
abusing judicial resources.” Tex. Gov’t Code § 498.0045(a-1). Earlier this year, appellant
attempted to appeal the trial court’s order from the same writ proceeding. See Clark v.
State, No. 14-12-00091-CR, 2012 WL 681818 (Tex. App.—Houston [14th Dist.] Mar. 1,
2012, no pet.) (not designated for publication) (dismissing the appeal for want of
jurisdiction). In that opinion, the court clearly stated that “only the Court of Criminal
Appeals has jurisdiction to review post-conviction habeas corpus proceedings.” Id. at *1.

        Appellant has filed a second appeal in this court from the same post-conviction
habeas proceeding after being informed that we lack jurisdiction. In addition, it appears
from the documents filed with this court that appellant has filed more than one writ
application with the Texas Court of Criminal Appeals.2 Furthermore, the federal court also
denied a habeas application. See Clark v. Thaler, No. H-10-3035, 2011 WL 1885181 (S.D.
Tex. May 18, 2011) (not designated for publication).




        1
          The statute was amended in 2005 to apply to proceedings arising from an application for writ of
habeas corpus.
        2
          Appellant included with his notice of appeal a copy of the notice from the Texas Court of
Criminal Appeals that his “subsequent” habeas application was dismissed.
                                                   2
      Accordingly, we grant the State’s motion. We determine that this appeal is frivolous
as defined in Section 498.0045 of the Texas Government Code. Tex. Gov’t Code §
498.0045(a-1). We order the appeal dismissed as frivolous.



                                         PER CURIAM



Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).




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