Fred Franklin Alexander v. State

• Court: Court of Appeals of Texas
• Decided: March 26, 2008
• Docket: 10-08-00047-CR
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00047-CR

Fred Franklin Alexander,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 21,126-361

MEMORANDUM  Opinion

Fred Franklin Alexander has filed a pro se “Appellant’s Motion Requesting Permission to Appeal” relating to his 1992 felony conviction and 75-year sentence.

In a February 15, 2008 letter, we notified Alexander that this cause was subject to dismissal for want of jurisdiction because if his Motion is treated as both a notice of appeal and a motion to extend time to file notice of appeal, it was not timely filed.  See Tex. R. App. P. 26.2(a)(1), 26.3.

Further, we notified him that if his Motion is treated as an application for writ of habeas corpus, this cause was subject to dismissal for want of jurisdiction because this Court does not have jurisdiction over post-conviction writs of habeas corpus in felony cases.  See Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App.—Texarkana 2005, orig. proceeding) (intermediate court of appeals has no jurisdiction over post-conviction writs of habeas corpus in felony cases) (citing Tex. Code Crim. Proc. Ann. art. 11.07(3)(a), (b) (Vernon 2005)); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.) (same).

We warned Alexander that we might dismiss this cause unless, within 21 days after the date of our letter, he showed grounds for continuing it.  He has filed a response, but it does not show grounds for continuing this cause.  Accordingly, we dismiss this cause for want of jurisdiction.

PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed

Opinion delivered and filed March 26, 2008

Do not publish

[CRPM]

appellate review.  See Tex. R. App. P. 33.1; see also In re E.A.R., 201 S.W.3d 813 (Tex. App.—Waco 2006, no pet.); In re A.C.A., No. 13-05-00610-CV, 2006 Tex. App. LEXIS 3759 (Tex. App.—Corpus Christi May 4, 2006, no pet.) (mem. op.).

Having failed to preserve any issues for appellate review, Herrington’s issues are overruled, and the judgment of the trial court is affirmed.[2]

FELIPE REYNA

Justice

Justice Reyna

(Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed March 21, 2007

 [CV06]

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[1]               Herrington voluntary relinquished parental rights to J.W.H. before trial and appeals the termination order only as to C.B.K.

[2]               The plain language of this statute compels the result reached in this case.  Nonetheless, we join our sister courts in expressing concern over the practical application and the constitutionality of this statute.  See Pool v. Tex. Dep’t of Family & Protective Servs., No. 01-05-01093-CV, 2006 Tex. App. LEXIS 10654 (Tex. App.—Houston [1st Dist.] Dec. 14, 2006, no pet. h.) (mem. op.); In re D.A.R., 201 S.W.3d 229, 230-31 (Tex. App.—Fort Worth 2006, no pet.); In re C.R., No. 02-06-00099-CV, 2006 Tex. App. LEXIS 9571 (Tex. App.—Fort Worth Nov. 2, 2006, no pet. h.) (mem. op.) (Livingston, J., concurring); In re S.E., 201 S.W.3d 14, 15 (Tex. App.—San Antonio 2006, no pet.); In re H.H.H., No. 06-06-00093-CV, 2006 Tex. App. LEXIS 8563 (Tex. App.—Texarkana Oct. 3, 2006, no pet.) (mem. op.); In re N.L.G., No. 06-06-00066-CV, 2006 Tex. App. LEXIS 10623 (Tex. App.—Texarkana Oct. 23, 2006, no pet. h.) (mem. op.); see also In re E.A.R., 201 S.W.3d 813, 814, 818 (Tex. App.—Waco 2006, no pet.)(Vance, J., concurring).

Termination of parental rights is a drastic remedy of constitutional magnitude.  In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994); Spangler v. Texas Dep’t. of Protective & Regulatory. Servs., 962 S.W.3d 253, 256 (Tex. App.—Waco 1998, no pet.).  The Supreme Court of the United States has recognized that parental-rights termination cases are to be governed by the requisites of the Due Process Clause.  Santosky v. Kramer, 455 U.S. 745, 752, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599 (1982).  The accelerated time for appeal and filing of a specific statement of point of appeals with the trial court are a substantial burden on indigent parents seeking to appeal a termination order.  See E.A.R., 201 S.W.3d at 816-17(Vance, J. concurring); In re S.J.G., 124 S.W.3d 237, 240-43 (Tex. App.—Fort Worth 2003, pet. denied).