Donald Wayne Herod v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 9, 2024
• Docket: 01-24-00174-CR
• Status: Published

Opinion

Opinion issued April 9, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00174-CR ——————————— DONALD WAYNE HEROD, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Case No. 1152281

MEMORANDUM OPINION

A jury found appellant, Donald Wayne Herod, of the felony offense of driving

while intoxicated, third offense.1 After finding true the allegations in two

enhancement paragraphs that appellant had twice been previously convicted of a

1 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b). felony offense, the trial court, on October 31, 2008, assessed appellant’s punishment

at confinement for fifty years. Appellant appealed the judgment of conviction,

which this Court affirmed.2

On February 9, 2024, appellant, incarcerated and proceeding pro se, filed a

“Notice of Appeal of This Void Sentence.” In his pro se notice of appeal, appellant

stated that under Texas case law, “the enhanced sentence” assessed by the trial court

was “void and [could] be raised at any time.”

We dismiss the appeal for lack of jurisdiction.

Jurisdiction

Since filing his notice of appeal, appellant has filed several letters and motions

with the Court. In his filings, appellant argues that his sentence was “void” because

the trial court improperly considered enhancement paragraphs in determining his

sentence. Appellant further asserts that this issue “may be raised at any time.” See

Ex parte Beck, 922 S.W.2d 181, 183 (Tex. Crim. App. 1996) (holding defect which

renders sentence void may be raised at any time). However, for the reasons below,

the Court lacks jurisdiction over appellant’s February 9, 2024 notice of appeal.

Criminal defendants have a statutory right to appeal their conviction. See TEX.

CODE CRIM. PROC. ANN. art. 44.02; Carson v. State, 559 S.W.3d 489, 492 (Tex.

2 See Herod v. State, No. 01-08-00908-CR, 2010 WL 1981577, at *5 (Tex. App.— Houston [1st Dist.] May 13, 2010, pet. ref’d) (mem. op.) (not designated for publication).

2 Crim. App. 2018). But we cannot exercise jurisdiction over an appeal without a

timely filed notice of appeal. See TEX. R. APP. P. 26.2(a); Castillo v. State, 369

S.W.3d 196, 198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex.

Crim. App. 1996); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st

Dist.] 2010, pet. ref’d). And “[c]ourts always have jurisdiction to determine their

own jurisdiction.” Harrell v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal

quotations omitted).

A defendant’s notice of appeal is timely if it is filed within thirty days after

the date the sentence is imposed or suspended in open court, or within ninety days

after the date the sentence is imposed or suspended in open court if the defendant

files a motion for new trial. TEX. R. APP. P. 26.2(a); see Bayless v. State, 91 S.W.3d

801, 806 (Tex. Crim. App. 2002). The time for filing a notice of appeal can also be

extended if, within fifteen days of the deadline for filing the notice of appeal, a

defendant files his notice of appeal in the trial court and a motion for extension of

time that complies with Texas Rule of Appellate Procedure 10.5(b) in the appellate

court. See TEX. R. APP. P. 10.5(b), 26.3; Lair, 321 S.W.3d at 159; see also Olivo,

918 S.W.2d at 522 (requiring both notice of appeal and motion for extension to be

filed within fifteen days of original due date for notice of appeal).

Here, the trial court signed and entered its judgment on October 31, 2008.

Accordingly, any notice of appeal was due to be filed with the trial court within thirty

3 days after the entry of the trial court’s judgment, namely, on or before December 1,

2008. Appellant’s February 9, 2024 notice of appeal is therefore not timely filed.

Accordingly, we lack jurisdiction to address the merits of his appeal and can take no

other action than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210

(Tex. Crim. App. 1998).

Despite this, as noted above, appellant asserts that “the enhanced sentence”

assessed by the trial court “was void” and a defect which renders a sentence void

may be raised at any time. But, to challenge a defective judgment or illegal sentence,

a defendant must file a post-conviction application for writ of habeas corpus, not an

untimely notice of appeal from the trial court’s judgment of conviction. See Ex parte

Beck, 922 S.W.2d at 181; see also Ex parte Rich, 194 S.W.3d 508, 511 (Tex. Crim.

App. 2006) (“We have long held that a claim of an illegal sentence is cognizable on

a writ of habeas corpus.”).

Here, appellant has not filed a post-conviction application for writ of habeas

corpus but has instead filed a direct appeal. And even assuming we could construe

appellant’s notice of appeal as a post-conviction application for writ of habeas

corpus, the Court would still lack jurisdiction. Generally, appellate courts lack

original jurisdiction to grant a writ of habeas corpus in a criminal case, as such

jurisdiction is vested in the Texas Court of Criminal Appeals, the district courts,

county courts, or a judge in those courts. See TEX. GOV’T CODE ANN. § 22.221(d);

4 TEX. CODE CRIM. PROC. ANN. art. 11.05. Further, specifically with respect to

requests for post-conviction applications for writ of habeas corpus, “[i]t is well

established that only the Court of Criminal Appeals possesses the authority to grant

relief in a post-conviction habeas corpus proceeding where there is a final felony

conviction.” Padieu v. Fifth Court of Appeals, 392 S.W.3d 115, 117 (Tex. Crim.

App. 2013) (internal quotations omitted); see also TEX. CODE CRIM. PROC. ANN. art.

11.07.

Accordingly, we dismiss the appeal for lack of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM Panel consists of Chief Justice Adams and Justices Guerra and Farris. Do not publish. TEX. R. APP. P. 47.2(b).