Ricky D. Howell v. State of Texas

• Court: Court of Appeals of Texas
• Decided: April 28, 2011
• Docket: 11-11-00087-CR
• Status: Published

Opinion

Opinion filed April 28, 2011

In The

Eleventh Court of Appeals __________

No. 11-11-00087-CR __________

RICKY D. HOWELL, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause No. C-26,251

MEMORANDUM OPINION

Ricky D. Howell was convicted as a repeat offender of the offenses of burglary of a habitation and aggravated sexual assault. He was sentenced to a term of confinement for fifty years in 1999. On March 18, 2011, Howell filed a notice of appeal from the trial court’s denial of a motion to set aside and vacate the judgment and sentence as void. We notified Howell by letter that it did not appear that this court had jurisdiction in this matter, and we requested that Howell file a response showing grounds to continue the appeal. Howell has filed a response urging that the trial court lacked jurisdiction to convict and sentence him. Howell explained in his response that he is intentionally pursuing relief under TEX. R. CIV. P. 329b(f), (g) rather than seeking relief through a post-conviction writ of habeas corpus under TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2010). Howell’s reliance on the Rules of Civil Procedure is misplaced. The trial court’s denial of Howell’s untimely motion to set aside the judgment is not an appealable order, and this court has no jurisdiction to entertain an appeal from that order. The appeal is dismissed for want of jurisdiction.

PER CURIAM

April 28, 2011 Do not publish. See TEX. R. APP. P. 47.2(b). Panel1 consists of: Wright, C.J., McCall, J., and Hill, J.2

1 Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a successor by the governor.

2 John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.