Opinion issued May 30, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00046-CR ——————————— EX PARTE TIFFANY MARIE DUNKLE, Appellant
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 0996707A
MEMORANDUM OPINION
Appellant, Tiffany Marie Dunkle, challenges the trial court’s order denying
her application for writ of habeas corpus.1 In three issues, appellant contends that
the trial court erred in denying her habeas relief.
We dismiss for lack of jurisdiction.
1 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8. Background
On August 9, 2004, after appellant, with an agreed punishment
recommendation from the State, pleaded guilty to the felony offense of possession
of marijuana of more than four ounces but less than five pounds,2 the trial court
assessed her punishment at confinement for two years and a fine of $500. The trial
court then suspended appellant’s sentence and placed her on community supervision
for two years. Appellant was discharged from the community supervision on
September 13, 2006.
On December 11, 2018, appellant filed an application for a writ of habeas
corpus under Texas Code of Criminal Procedure article 11.072.3 In her habeas
application, appellant argued that her guilty plea was involuntary because her trial
counsel provided her with ineffective assistance of counsel by failing to conduct an
adequate investigation, failing to advise appellant of the collateral consequences of
2 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3). 3 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8. Although appellant stated in her application for writ of habeas corpus that she was filing it pursuant to Texas Code of Criminal Procedure article 11.07, she filed a Memorandum of Law in Support of Application for Writ of Habeas Corpus asserting that she was entitled to habeas relief under both Texas Code of Criminal Procedure article 11.07 and article 11.072. Ultimately, the parties and the trial court agreed to treat appellant’s application as a request for habeas relief under article 11.072. See id. art. 11.072, § 1 (establishing procedures for seeking relief from judgment of conviction ordering community supervision); Ex parte Salim, 595 S.W.3d 844, 854 (Tex. App.—Fort Worth 2020, no pet.) (mem. op.) (concluding trial court permissibly treated application for writ of habeas corpus incorrectly filed under Texas Code of Criminal Procedure article 11.07 as an article 11.072 habeas application).
2 her plea, and failing to “inquire into whether the [trial court] would place [her] on
deferred adjudication.” Appellant also argued that the trial court lacked jurisdiction
at the time she entered her guilty plea because appellant’s “waiver of indictment was
not voluntary and knowing.”
In response to appellant’s application for writ of habeas corpus, the State
asserted that appellant had failed to demonstrate that her counsel provided her with
ineffective assistance and that she had suffered harm. The State also asserted that
appellant could not rebut the presumption that her plea was entered voluntarily. In
addition to the State’s response, appellant’s former trial counsel, Deborah Keyser,
filed an affidavit “in response to [appellant’s] petition for post[-]conviction writ of
habeas corpus.”
On March 22, 2019, the trial court signed the State’s Proposed Findings of
Fact, Conclusions of Law, and Order, adopting the recommendation that appellant’s
application for writ of habeas corpus be denied.
Subsequently, on April 2, 2019, appellant filed a Request for an Evidentiary
Hearing, asserting that a hearing on her habeas application was necessary for the
trial court to “make a credibility choice to determine whether [appellant was] entitled
to [habeas] relief.” Appellant further asserted that evidence presented at a hearing
would contradict the assertions made by appellant’s former trial counsel in her
affidavit.
3 In response to appellant’s hearing request, the State asserted that the request
was untimely, the trial court was not required to hold an evidentiary hearing related
to appellant’s application for writ of habeas corpus, and no controverted factual
issues remained. On May 3, 2019, the trial court denied appellant’s request for an
evidentiary hearing and requested that the parties submit proposed findings of facts
and conclusions of law.4 On May 20, 2019, the State filed its Amended Proposed
Findings of Fact and Conclusions of Law, and Order, to which appellant objected.
On May 21, 2019, appellant filed a Motion to Set Aside Findings of Fact
Entered on March 22, 2019, asserting that she did not receive notice of the trial
court’s March 22, 2019 findings of fact and conclusions of law or notice of the trial
court’s denial of her request for an evidentiary hearing related to her application for
writ of habeas corpus until May 17, 2019. According to appellant, she was “under
the impression that no action had . . . [yet] been taken” on her habeas application and
she believed that the trial court had “inadvertently signed” the March 22, 2019
findings of fact and conclusions of law because, on May 16, 2019, the trial court had
“indicated that it would review [appellant’s] supplemental memorandum and then
would inform [appellant] how the [c]ourt would rule and proposed findings could
4 Following the trial court’s May 3, 2019 order, appellant filed a supplemental memorandum in support of her request for an evidentiary hearing and an affidavit.
4 then be submitted.” The trial court did not rule on appellant’s Motion to Set Aside
Findings of Fact Entered on March 22, 2019.
On December 19, 2022, appellant filed a Motion Requesting an Out of Time
Appeal from the trial court’s March 22, 2019 denial of habeas relief. In her motion,
appellant asserted that she did not receive timely notice of the denial of her
application for writ of habeas corpus. That same day, the trial court signed an order
granting appellant’s motion, stating:
The Court having examined the foregoing motion, and being of the opinion that it should be granted. [It] is hereby ORDERED and ADJUDGED that [appellant] is allowed to file a notice of appeal from this Court’s order dated March 22, 2019.
On January 4, 2023, appellant filed a notice of appeal from the trial court’s
March 22, 2019 denial of her application for writ of habeas corpus.
Jurisdiction
“Courts always have jurisdiction to determine their own jurisdiction.” Harrell
v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Whether
we have jurisdiction is a question of law, which we review de novo. See Comunidad
Corp. v. State, 445 S.W.3d 401, 404 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
When the jurisdiction of the appellate court has not been invoked, the appellate court
must dismiss an appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998); Strange v. State, 258 S.W.3d 184, 185 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d).
5 To invoke the court of appeals’ jurisdiction, a defendant must timely file a
notice of appeal.5 Blanton v.
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Opinion issued May 30, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00046-CR ——————————— EX PARTE TIFFANY MARIE DUNKLE, Appellant
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 0996707A
MEMORANDUM OPINION
Appellant, Tiffany Marie Dunkle, challenges the trial court’s order denying
her application for writ of habeas corpus.1 In three issues, appellant contends that
the trial court erred in denying her habeas relief.
We dismiss for lack of jurisdiction.
1 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8. Background
On August 9, 2004, after appellant, with an agreed punishment
recommendation from the State, pleaded guilty to the felony offense of possession
of marijuana of more than four ounces but less than five pounds,2 the trial court
assessed her punishment at confinement for two years and a fine of $500. The trial
court then suspended appellant’s sentence and placed her on community supervision
for two years. Appellant was discharged from the community supervision on
September 13, 2006.
On December 11, 2018, appellant filed an application for a writ of habeas
corpus under Texas Code of Criminal Procedure article 11.072.3 In her habeas
application, appellant argued that her guilty plea was involuntary because her trial
counsel provided her with ineffective assistance of counsel by failing to conduct an
adequate investigation, failing to advise appellant of the collateral consequences of
2 See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3). 3 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8. Although appellant stated in her application for writ of habeas corpus that she was filing it pursuant to Texas Code of Criminal Procedure article 11.07, she filed a Memorandum of Law in Support of Application for Writ of Habeas Corpus asserting that she was entitled to habeas relief under both Texas Code of Criminal Procedure article 11.07 and article 11.072. Ultimately, the parties and the trial court agreed to treat appellant’s application as a request for habeas relief under article 11.072. See id. art. 11.072, § 1 (establishing procedures for seeking relief from judgment of conviction ordering community supervision); Ex parte Salim, 595 S.W.3d 844, 854 (Tex. App.—Fort Worth 2020, no pet.) (mem. op.) (concluding trial court permissibly treated application for writ of habeas corpus incorrectly filed under Texas Code of Criminal Procedure article 11.07 as an article 11.072 habeas application).
2 her plea, and failing to “inquire into whether the [trial court] would place [her] on
deferred adjudication.” Appellant also argued that the trial court lacked jurisdiction
at the time she entered her guilty plea because appellant’s “waiver of indictment was
not voluntary and knowing.”
In response to appellant’s application for writ of habeas corpus, the State
asserted that appellant had failed to demonstrate that her counsel provided her with
ineffective assistance and that she had suffered harm. The State also asserted that
appellant could not rebut the presumption that her plea was entered voluntarily. In
addition to the State’s response, appellant’s former trial counsel, Deborah Keyser,
filed an affidavit “in response to [appellant’s] petition for post[-]conviction writ of
habeas corpus.”
On March 22, 2019, the trial court signed the State’s Proposed Findings of
Fact, Conclusions of Law, and Order, adopting the recommendation that appellant’s
application for writ of habeas corpus be denied.
Subsequently, on April 2, 2019, appellant filed a Request for an Evidentiary
Hearing, asserting that a hearing on her habeas application was necessary for the
trial court to “make a credibility choice to determine whether [appellant was] entitled
to [habeas] relief.” Appellant further asserted that evidence presented at a hearing
would contradict the assertions made by appellant’s former trial counsel in her
affidavit.
3 In response to appellant’s hearing request, the State asserted that the request
was untimely, the trial court was not required to hold an evidentiary hearing related
to appellant’s application for writ of habeas corpus, and no controverted factual
issues remained. On May 3, 2019, the trial court denied appellant’s request for an
evidentiary hearing and requested that the parties submit proposed findings of facts
and conclusions of law.4 On May 20, 2019, the State filed its Amended Proposed
Findings of Fact and Conclusions of Law, and Order, to which appellant objected.
On May 21, 2019, appellant filed a Motion to Set Aside Findings of Fact
Entered on March 22, 2019, asserting that she did not receive notice of the trial
court’s March 22, 2019 findings of fact and conclusions of law or notice of the trial
court’s denial of her request for an evidentiary hearing related to her application for
writ of habeas corpus until May 17, 2019. According to appellant, she was “under
the impression that no action had . . . [yet] been taken” on her habeas application and
she believed that the trial court had “inadvertently signed” the March 22, 2019
findings of fact and conclusions of law because, on May 16, 2019, the trial court had
“indicated that it would review [appellant’s] supplemental memorandum and then
would inform [appellant] how the [c]ourt would rule and proposed findings could
4 Following the trial court’s May 3, 2019 order, appellant filed a supplemental memorandum in support of her request for an evidentiary hearing and an affidavit.
4 then be submitted.” The trial court did not rule on appellant’s Motion to Set Aside
Findings of Fact Entered on March 22, 2019.
On December 19, 2022, appellant filed a Motion Requesting an Out of Time
Appeal from the trial court’s March 22, 2019 denial of habeas relief. In her motion,
appellant asserted that she did not receive timely notice of the denial of her
application for writ of habeas corpus. That same day, the trial court signed an order
granting appellant’s motion, stating:
The Court having examined the foregoing motion, and being of the opinion that it should be granted. [It] is hereby ORDERED and ADJUDGED that [appellant] is allowed to file a notice of appeal from this Court’s order dated March 22, 2019.
On January 4, 2023, appellant filed a notice of appeal from the trial court’s
March 22, 2019 denial of her application for writ of habeas corpus.
Jurisdiction
“Courts always have jurisdiction to determine their own jurisdiction.” Harrell
v. State, 286 S.W.3d 315, 317 (Tex. 2009) (internal quotations omitted). Whether
we have jurisdiction is a question of law, which we review de novo. See Comunidad
Corp. v. State, 445 S.W.3d 401, 404 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
When the jurisdiction of the appellate court has not been invoked, the appellate court
must dismiss an appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998); Strange v. State, 258 S.W.3d 184, 185 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d).
5 To invoke the court of appeals’ jurisdiction, a defendant must timely file a
notice of appeal.5 Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012).
In cases where a criminal defendant is the appellant, the notice of appeal must be
filed either: (1) “within 30 days after the day sentence is imposed or suspended in
open court, or after the day the trial court enters an appealable order” or (2) “within
90 days after the day sentence is imposed or suspended in open court if the defendant
timely files a motion for new trial.” TEX. R. APP. P. 26.2(a). An appellate court
may extend the deadline to file a notice of appeal if the defendant files a notice of
appeal in the trial court and a motion for an extension of time in the court of appeals
within fifteen days after the deadline to file the notice of appeal. See TEX. R. APP.
P. 10.5(b), 26.3; McFerran v. State, No. 14-23-00595-CR, 2023 WL 7513859, at *1
(Tex. App. —Houston [14th Dist.] Nov. 14, 2023, no pet.) (mem. op., not designated
for publication). A notice of appeal that complies with the requirements of the Texas
Rules of Appellate Procedure is essential to vest the court of appeals with
jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
On December 11, 2018, appellant filed an application for a writ of habeas
corpus under Texas Code of Criminal Procedure article 11.072. On March 22, 2019,
the trial court denied appellant habeas relief. On December 19, 2022, appellant filed
5 An order denying habeas relief under Texas Code of Criminal Procedure article 11.072 is an appealable order. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8.
6 a Motion Requesting an Out of Time Appeal from the trial court’s March 22, 2019
denial of her application for a writ of habeas corpus on the ground that she did not
receive timely notice of the denial. The trial court granted appellant’s motion, and
on January 4, 2023, appellant filed her notice of appeal.
Texas Code of Criminal Procedure article 11.072 establishes the procedure
for a defendant to seek habeas corpus relief “from an order or a judgment of
conviction ordering community supervision.” TEX. CODE CRIM. PROC. ANN. art.
11.072, § 1; see also Ex parte Salazar, 510 S.W.3d 619, 625 (Tex. App.—El Paso
2016, pet. ref’d). A trial court has original jurisdiction to grant a writ of habeas
corpus filed under article 11072. TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1; see
also Ex parte Hiracheta, 307 S.W.3d 323, 325 (Tex. Crim. App. 2010) (defendant
must file application for article 11.072 writ of habeas corpus in trial court in which
community supervision was imposed). This includes jurisdiction over a habeas
application in which the defendant seeks an out-of-time appeal. Ex parte Valdez,
489 S.W.3d 462, 465 (Tex. Crim. App. 2016) (noting trial courts with habeas
authority have power to grant out-of-time appeal and holding “a trial court is
authorized to reset the clock for an out-of-time P[etition] [for] D[iscretionary]
R[eview] should such relief be necessary through a meritorious application for a writ
of habeas corpus”).
7 Thus, for a defendant who misses her deadline to file a notice of appeal and
seeks an out-of-time appeal from the trial court’s denial of habeas application filed
under Texas Code of Criminal Procedure article 11.072, the procedure is to file
another application for a writ of habeas corpus seeking that relief. See Ex parte
Sanders, No. 05-20-00729-CR, 2021 WL 1115541, at *1 (Tex. App.—Dallas Mar.
24, 2021, no pet.) (mem. op., not designated for publication) (trial court has original
“jurisdiction over a habeas application in which the [defendant] seeks an out-of-time
appeal”); Ex parte Salim, 595 S.W.3d 852, 857 (Tex. App.—Fort Worth Jan. 16,
2020, no pet.) (mem. op.) (affirming trial court’s “order on [habeas] [a]pplication
[t]hree granting the out-of-time appeal of the denial of relief on [habeas]
[a]pplication [o]ne”); Chacon v. State, No. 02-16-00012-CR, 2016 WL 5443358, at
*1 (Tex. App.—Fort Worth Sept. 29, 2016, pet. ref’d) (mem. op., not designated for
publication) (trial court granted appellant’s second application for writ of habeas
corpus requesting out-of-time appeal from denial of first application for writ of
habeas corpus.).
Here, however, in seeking an out-of-time appeal from the trial court’s March
22, 2019 denial of habeas relief, appellant did not follow the proper procedure.
Instead of filing a subsequent application for writ of habeas corpus seeking an
out-of-time appeal, appellant filed a motion in the trial court. Because the trial court
has original jurisdiction to grant or deny a habeas application in which the defendant
8 seeks an out-of-time appeal, appellant was required to file a subsequent application
for writ of habeas corpus in order to invoke the trial court’s original habeas
jurisdiction. Accordingly, we conclude that the trial court was without jurisdiction
to grant appellant’s motion for an out-of-time appeal from the March 22, 2019 denial
of habeas relief, rendering the trial court’s December 19, 2022 order void.6 See
Flores v. State, 679 S.W.3d 695, 697 (Tex. Crim. App. 2023) (“Actions taken by a
court without jurisdiction are void.”).
Accordingly, without a valid order granting appellant the right to an
out-of-time appeal, appellant’s notice of appeal is untimely, and this Court lacks
jurisdiction over appellant’s appeal. See Slaton, 981 S.W.2d at 210 (“If an appeal is
not timely perfected, a court of appeals does not obtain jurisdiction to address the
merits of the appeal. Under those circumstances it can take no action other than to
dismiss the appeal.”).
6 The cases relied on by appellant in her briefing to assert that the trial court had jurisdiction to grant her motion for an out-of-time appeal due to a “breakdown in the system” are inapposite because unlike here, the defendants in those cases did file an application for writ of habeas corpus seeking an out-of-time appeal. See e.g., Ex parte Riley, 193 S.W.3d 900, 901 (Tex. Crim. App. 2006) (“Applicant filed an application for a writ of habeas corpus, requesting leave to file an out-of-time petition for discretionary review.”); Ex parte McCarty, No. 03-14-00575-CR, 2015 WL 2089091, at *3–4 (Tex. App.—Austin Apr. 29, 2015, no pet.) (mem. op.) (application for writ of habeas corpus for out-of-time appeal permissible remedy under article 11.072).
9 Conclusion
We dismiss the appeal for lack of jurisdiction. All pending motions are
dismissed as moot.
Julie Countiss Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).