Billy Max Collins v. State

• Court: Court of Appeals of Texas
• Decided: June 26, 2008
• Docket: 06-08-00111-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00111-CR ______________________________

BILLY MAX COLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th Judicial District Court Hopkins County, Texas Trial Court No. 14018

Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Justice Moseley OPINION

Billy Max Collins has filed an attempted appeal from a ruling denying his petition seeking

a "Bill of Review" of his 1997 criminal conviction for driving while intoxicated. He asked the trial

court to enter an acquittal, based on his claim that double jeopardy should have prevented the second

prosecution of the allegations against him after a 1995 mistrial due to a hung jury on the same

charge.

Collins appealed from that conviction to the Twelfth Court of Appeals, which later dismissed

his appeal on his request. The record provided to this Court also shows that he sought post-

conviction habeas relief from the Texas Court of Criminal Appeals and that his request was denied.

The right to appeal is conferred by the Legislature. Rushing v. State, 85 S.W.3d 283, 286

(Tex. Crim. App. 2002). A party may appeal only that which the Legislature has authorized. Marin

v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993); Galitz v. State, 617 S.W.2d 949, 951 (Tex.

Crim. App. 1981).

The Legislature has limited available collateral post-conviction remedies to that of habeas

corpus, pursuant to Article 11.07 of the Texas Code of Criminal Procedure through the Texas Court

of Criminal Appeals. TEX . CODE CRIM . PROC. ANN . art. 11.07 (Vernon Supp. 2007). The Texas

Court of Criminal Appeals and lower courts have recognized that "the exclusive post-conviction

remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to

TEX . CODE CRIM . PROC. [ANN .] art. 11.07." Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim.

2 App. 1996); accord In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana 2006, orig.

proceeding).

Further, there is authority explicitly holding that the equitable bill of review has no

application in a criminal case. Ex parte Williams, 165 Tex. Crim. 130, 303 S.W.2d 403, 405 (1957),

overruled on other grounds by Ex parte Taylor, 522 S.W.2d 479 (Tex. Crim. App. 1975); see

McLean v. State, 146 Tex. Crim. 95, 171 S.W.2d 889, 890 (1943) (holding that bill of review has

no application to criminal cases and only available remedies are appeal or resort to writ of habeas

corpus).

The notice of appeal is not from a judgment of conviction—but from the denial of a bill of

review. We have reviewed the order at bar and can find no authority permitting us to conclude that

it is a type of order which the Legislature has set out as being appealable, and the authorities cited

above mandate to the contrary. We therefore have no jurisdiction over the appeal.

We dismiss the appeal for want of jurisdiction.

Bailey C. Moseley Justice

Date Submitted: June 25, 2008 Date Decided: June 26, 2008

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