Darrell Darcell Darby v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2020
• Docket: 02-19-00409-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-19-00409-CR ___________________________

DARRELL DARCELL DARBY, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 0807929A

Before Bassel, Womack, and Wallach, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

In 2003, a jury found Appellant Darrell Darcell Darby guilty of capital murder

and assessed his punishment at life, and the trial court entered judgment accordingly.1

Over sixteen years later, Appellant filed a pro se “Motion to Reopen Punishment” in

the trial court. 2 Appellant has filed a pro se notice of appeal, attempting to challenge

the trial court’s October 9, 2019 order denying this motion.

We notified Appellant by letter of our concern that we lack jurisdiction over

this matter because the trial court has not entered any appealable orders. We advised

that the appeal may be dismissed unless he or any party desiring to continue the

appeal filed a response by November 18, 2019, that showed grounds for continuing

the appeal. Appellant filed an untimely response styled as a Motion for Rehearing.

In the interest of justice, we reviewed the substance of the Motion for

Rehearing for arguments responsive to our letter; it does not cite any authority

granting us jurisdiction over this appeal. Appellant’s arguments focus on whether the

trial court had plenary jurisdiction to consider the relief he requested in the trial court.

But even if we assume that the trial court had jurisdiction, Appellant conflates the

issue of whether the trial court had jurisdiction to grant the relief sought with the

issue of whether we have jurisdiction to consider an appeal based upon the trial

We affirmed the judgment on direct appeal in Darby v. State, 145 S.W.3d 714 1

(Tex. App.—Fort Worth 2005, pet. ref’d).

We note that the cause number for his 2003 conviction was 0807929D, but 2

Appellant filed his motion using cause number 0807929A.

2 court’s denial of that relief. See Kurosky v. State, No. 2-10-00202-CR, 2011 WL 255672,

at *1 (Tex. App.—Fort Worth Jan. 27, 2011, no pet.) (per curiam) (mem. op. on reh’g,

not designated for publication). These are different things. And Appellant has not

directed us to, and we have not found, any provision authorizing his appeal from an

order denying his “Motion to Reopen Punishment.”

In criminal cases, unless expressly authorized by law, appellate courts have

jurisdiction to review only final judgments. See Abbott v. State, 271 S.W.3d 694, 696–97

(Tex. Crim. App. 2008) (standard for determining jurisdiction is not whether appeal is

precluded by law but whether appeal is authorized by law). An appellate court may

generally consider appeals by criminal defendants only after a final judgment of

conviction. See McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth 1996,

no pet.) (per curiam).

Appellant’s “Motion to Reopen Punishment” was a collateral attack on his

2003 conviction because, among other things, it challenged the evidence at trial

supporting his conviction. The post-conviction habeas corpus procedure set out in

the Texas Code of Criminal Procedure is the sole procedure for collaterally attacking

final felony convictions. See Williams v. State, No. 05-14-01219-CR, 2014 WL 5100263,

at *1 (Tex. App.—Dallas Oct. 13, 2014, no pet.) (mem. op., not designated for

publication) (citing Tex. Code Crim. Proc. Ann. arts. 11.05, 11.07). We do not

generally have jurisdiction over proceedings relating to a collateral attack of a final

felony conviction. See Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996);

3 see also Russell v. State, Nos. 02-15-00464-CR, 02-15-00465-CR, 2016 WL 757666, at *1

(Tex. App.—Fort Worth Feb. 25, 2016, no pet.) (per curiam) (mem. op., not

designated for publication) (dismissing appeals relating to trial court’s purported

failure to rule on defendant’s Motions to Reform Judgment for lack of jurisdiction

because the motions were collateral attacks on final felony convictions); In re Palmer,

No. 02-15-00003-CV; 2015 WL 234290, at *1 (Tex. App.—Fort Worth Jan. 16, 2015,

orig. proceeding) (mem. op., not designated for publication) (dismissing petition for

writ of mandamus for want of jurisdiction because relator’s requested relief,

correcting a defective certification of the right to appeal, was a collateral attack on his

conviction because it was based on challenges to the validity of his final conviction);

Williams, 2014 WL 5100263, at *1 (dismissing appeal relating to pro se motions to

correct a void judgment and to recuse the presiding trial court judge for lack of

jurisdiction); Hinkle v. State, No. 02-11-00214-CR, 2012 WL 4663064, at *1 (Tex.

App.—Fort Worth Oct. 4, 2012, pet. ref’d) (per curiam) (mem. op., not designated for

publication) (dismissing appeal for lack of jurisdiction when appellant’s argument

relating to a post-conviction motion for DNA testing was based on a collateral attack

upon the judgment of conviction).

Accordingly, we lack jurisdiction to decide the merits of Appellant’s appeal.

When we lack jurisdiction to act, we have no power to dispose of the purported

appeal in any manner other than dismissal for lack of jurisdiction. See Olivo, 918

S.W.2d at 523.

4 We dismiss this appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(a),

43.2(f).

Per Curiam Do Not Publish Tex.R. App. P. 47.2(b)

Delivered: January 16, 2020