Arturo Medina v. State

• Court: Court of Appeals of Texas
• Decided: April 15, 2014
• Docket: 01-14-00117-CR
• Status: Published

Opinion

Opinion issued April 15, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00117-CR NO. 01-14-00118-CR NO. 01-14-00119-CR ——————————— ARTURO MEDINA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court Harris County, Texas Trial Court Case No. 9427214, 9427213, 9427947

MEMORANDUM OPINION

Appellant, Arturo Medina, was convicted of three felony murders in three

separate cases, trial court cause numbers 9427214, 9427213, and 9427947. See

TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). On November 6, 1997, we reformed the trial court’s judgments to delete the affirmative findings of a deadly

weapon and affirmed the judgments as reformed. See Medina v. State, 962 S.W.2d

83, 88 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Our mandate issued in

each case on June 8, 1998.

On September 30, 2013, Medina filed a “Motion for Nunc Pro Tunc” in the

trial court, asking the trial court to notify prison officials that we reformed his

judgments to delete the affirmative finding that a deadly weapon was used in each

case. On the same day, he filed a “Request for Hearing Setting Date,” a “Motion

for Bench Warrant-Live Appearance or by Telephonic Means,” and a “Motion for

Appointment of Counsel During Nunc Pro Tunc Proceedings,” requesting that the

trial court set a hearing on his “Motion for Nunc Pro Tunc,” that he be bench-

warranted to the trial court for the hearing, and that counsel be appointed to

represent him at the hearing. On November 11, 2013, Medina filed a “Second

Request for Hearing Setting Date,” which the trial court denied on November 26,

2013. On December 10, 2013, Medina filed a notice of appeal, with each trial

court cause listed in the caption, stating that he is “appealing the 180th District

Court’s denial of his motion for hearing filed before the 180th District Court on

November 26, 2013.”

We lack jurisdiction over these attempted appeals. As an initial matter, an

appellant generally may only appeal from a final judgment, and an “appeal does

2 not lie from an order denying a request for judgment nunc pro tunc.” Hunt v. State,

No. 03-04-00343-CR, 2004 WL 1896994, at *1 (Tex. App.—Austin Aug. 26,

2004, no pet.) (not designated for publication); see State v. Sellers, 790 S.W.2d

316, 321 n.4 (Tex. Crim. App. 1990) (“A defendant’s general right to appeal . . .

has always been limited to appeal from a ‘final judgment,’ though the statute does

not contain this limitation on its face.”); Everett v. State, 82 S.W.3d 735, 735 (Tex.

App.—Waco 2002, pet. dism’d) (“No statute vests this Court with jurisdiction over

an appeal from an order denying a request for judgment nunc pro tunc.”). Thus,

Medina may not appeal from either an order denying his “Motion for Nunc Pro

Tunc” or an order denying his motion requesting that the trial court set a hearing

on his motion.

Further, only the Texas Court of Criminal Appeals has jurisdiction in final

post-conviction felony proceedings, which are governed by Article 11.07 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07

(West Supp. 2013); Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App.

1996); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth

Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53 S.W.3d 715,

717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). “Courts of appeals

have no jurisdiction over post-conviction writs of habeas corpus in felony cases.

Article 11.07 contains no role for the courts of appeals.” In re Briscoe, 230

3 S.W.3d 196, 196 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (internal

citations omitted). “Should an applicant find it necessary to complain about an

action or inaction of the convicting court, the applicant may seek mandamus relief

from the Court of Criminal Appeals.” In re McAfee, 53 S.W.3d at 717. Because

Medina’s convictions became final on June 8, 1998, this is a final post-conviction

felony proceeding, and we have no jurisdiction over these appeals. See In re

Havard, No. 09-12-00217-CR, 2012 WL 1884168, at *1 (Tex. App.—Beaumont

May 23, 2012, no pet.) (not designated for publication) (holding that “complaints

concerning clerical errors in judgment that are final and non-appealable are

required to be filed in the Court of Criminal Appeals”); In re McAfee, 53 S.W.3d at

717–18 (holding that petition for writ of mandamus complaining of action or

inaction by trial court must be filed in Court of Criminal Appeals).

Accordingly, we dismiss the appeals. See TEX. R. APP. P. 43.2(f). We

dismiss any pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).