John Wesley Patterson III v. State

• Court: Court of Appeals of Texas
• Decided: September 3, 2014
• Docket: 05-14-01100-CR
• Status: Published

Opinion

Dismissed and Opinion Filed September 3, 2014

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01098-CR No. 05-14-01100-CR

JOHN WESLEY PATTERSON III, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause Nos. 416-82554-05, 416-82555-05

MEMORANDUM OPINION Before Justices Francis, Myers, and Lewis Opinion by Justice Francis John Wesley Patterson was convicted of multiple counts of aggravated sexual assault of a

child, sexual assault of a child, and indecency with a child, as alleged in separate counts in two

indictments. On direct appeal, this Court modified the trial court’s judgments to correct

inaccuracies, and affirmed as modified. We also remanded for punishment as to one of the

counts included in trial court no. 416-82554-05 and ordered the trial court to enter new

judgments reflecting the modifications set out in our judgments. Patterson v. State, Nos. 05-06-

00808-CR, 05-06-00876-CR (Tex. App.––Dallas Nov. 29, 2007, no pet.) (not designated for

publication).

On November 13, 2013, appellant filed a “motion for nunc pro tunc ruling.” On March

10, 2014, appellant filed a “motion to vacate and dismiss and set aside a prior void enhancement.” On July 16, 2014, appellant filed a “motion requesting compliance with Texas

motion ministerial duties,” in which he appears to be seeking a ruling on his “motion for nunc

pro tunc ruling.” On July 29, 2014, the trial court, by written order, denied appellant’s pro se

motions. These appeals followed. We conclude we lack jurisdiction over the appeals.

“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. The right to appeal in a criminal case is a statutorily created right. See McKinney v.

State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex.

Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of

appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate

courts may consider appeals by criminal defendants only after conviction or the entry of an

appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.).

An order denying a motion seeking nunc pro tunc relief is not appealable. See Sanchez v.

State, 112 S.W.3d 311, 312 (Tex. App.––Corpus Christi 2003, no pet.) (per curiam); Everett v.

State, 82 S.W.3d 735, 735 (Tex. App.––Waco 2002, no pet.); Allen v. State, 20 S.W.3d 164, 165

(Tex. App.––Texarkana 2000, no pet.). See also Abbott v. State, 271 S.W.3d 694, 696–97 (Tex.

Crim. App. 2008) (appellate court lacked jurisdiction to review appeal order denying motion for

additional time credit); State v. Ross, 953 S.W.2d 748, 752 (Tex. Crim. App. 1997) (suggesting

mandamus proper way to challenge denial of nunc pro tunc judgment).

Moreover, appellant’s “motion to vacate and dismiss and set aside a prior void

enhancement” is, in substance, a collateral attack on the prior felony conviction used to enhance

appellant’s sentences and thus the sentences themselves. However, the post-conviction habeas

corpus procedure set out in the Texas Code of Criminal Procedure is the sole procedure by which

–2– to collaterally attack final felony convictions, and this Court does not have jurisdiction over post-

conviction habeas corpus proceedings involving final felony convictions. See TEX. CODE CRIM.

P. ANN. arts. 11.05, 11.07 (West 2005 & Supp. 2013).

Accordingly, we dismiss the appeals for want of jurisdiction.

Do Not Publish /Molly Francis/ TEX. R. APP. P. 47 MOLLY FRANCIS 141098F.U05 JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOHN WESLEY PATTERSON III, On Appeal from the 416th Judicial District Appellant Court, Collin County, Texas Trial Court Cause No. 416-82554-05. No. 05-14-01098-CR V. Opinion delivered by Justice Francis, Justices Myers and Lewis participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered September 3, 2014

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOHN WESLEY PATTERSON III, On Appeal from the 416th Judicial District Appellant Court, Collin County, Texas Trial Court Cause No. 416-82555-05. No. 05-14-01100-CR V. Opinion delivered by Justice Francis, Justices Myers and Lewis participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

–5–