Ex Parte Lowell Quincy Green
10-16-00440-CR
| Tex. App. | Jan 11, 2017Background
- Lowell Quincy Green filed a "Motion for Writ of Error" seeking reversal and acquittal of three aggravated-robbery convictions and release from confinement.
- Green argued convictions were unauthorized because the jury did not make an affirmative deadly-weapon finding, counsel was ineffective for failing to object, and certain Code provisions were misapplied.
- His convictions had previously been affirmed on direct appeal by the San Antonio Court of Appeals, and his petition for discretionary review was refused by the Court of Criminal Appeals.
- Green’s filing was construed as a post-conviction attack on his felony judgments (a habeas-type collateral challenge).
- The Tenth Court of Appeals concluded it lacked jurisdiction over post-conviction habeas relief in felony cases and therefore dismissed Green’s motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to entertain post-conviction collateral attack | Green sought release and reversal via this Court’s writ process | State: exclusive jurisdiction for post-conviction felony habeas lies with Court of Criminal Appeals | Dismissed for lack of jurisdiction; Court of Criminal Appeals has exclusive jurisdiction |
| Unauthorized verdict for aggravated robbery (no affirmative deadly-weapon finding) | Convictions unauthorized because jury did not affirmatively find deadly weapon | State relied on prior appeals and that relief must be sought via article 11.07 habeas | Court did not reach merits; dismissed for jurisdictional defect |
| Ineffective assistance for failing to object to unauthorized verdicts | Counsel ineffective for not objecting to verdicts lacking deadly-weapon finding | State: claim is collateral and must proceed in proper habeas forum | Dismissed as a post-conviction claim outside this court’s jurisdiction |
| Challenge to statutory application (art. 42.12 §3(g)(a)(2) and Gov’t Code §508.145(d)(1)) | Green contended those provisions were wrongly applied to him | State: statutory challenges to confinement are part of post-conviction habeas remedies | Dismissed for lack of jurisdiction; procedural route improper in this court |
Key Cases Cited
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (exclusive post-conviction remedy for final felony convictions is through art. 11.07 habeas)
- Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481 (Tex. Crim. App. 1995) (Court of Criminal Appeals has jurisdiction over felony post-conviction writs)
- Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (post-conviction jurisdiction for felony habeas resides with Court of Criminal Appeals)
- Ex parte Mendenhall, 209 S.W.3d 260 (Tex. App.—Waco 2006) (no pet.) (explaining procedural route for post-conviction relief in felony cases)