James Ray Clayton v. State

• Court: Court of Appeals of Texas
• Decided: April 24, 2014
• Docket: 07-14-00156-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00156-CR ________________________

JAMES RAY CLAYTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 88-40,508; Honorable Jim Bob Darnell, Presiding1

April 24, 2014

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

In 1988, Appellant, James Ray Clayton, was convicted of burglary of a habitation

with intent to commit sexual assault, enhanced, and sentenced to life imprisonment. By

opinion and judgment dated March 16, 1989, this Court affirmed the conviction.2 The

conviction became final, and Appellant is not entitled to a second appeal from that

conviction.

1 When Appellant was convicted in 1988, the presiding judge was Honorable John R. McFall, now deceased. 2 See Clayton v. State, 767 S.W.2d 504 (Tex. App.—Amarillo 1989, pet, ref’d). On April 21, 2014, Appellant filed a Notice of Appeal purporting to appeal the trial

court’s “neglect” in failing to rule on a Bill of Review he filed in January 2014, asserting

his judgment and sentence were void from their inception. We dismiss this purported

appeal for want of jurisdiction.

This Court has jurisdiction to hear an appeal only if it is from a final order or

judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). We also have

jurisdiction to consider immediate appeals of interlocutory orders only if a statute

explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352-53

(Tex. 1998). Appellant admits in his notice that there is no judgment from which to

appeal.

Moreover, a bill of review is an equitable proceeding and an independent cause

of action to set aside a civil judgment that is no longer appealable or subject to

challenge. See Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 926-27 (Tex. 1999). See

also TEX. R. CIV. P. 329b(f). A bill of review has no application in a criminal proceeding,

and it is not a proper procedure for challenging a criminal conviction. See Morgan v.

Klein, No. 07-12-0430-CV, 2012 Tex. App. LEXIS 9966, at *2 (Tex. App.—Amarillo Nov.

29, 2012, no pet.) (mem. op).

Consequently, this proceeding is dismissed for want of jurisdiction.

Patrick A. Pirtle Justice

Do not publish.