Senrick Shern Wilkerson v. State

Opinion

Dismissed and Opinion Filed September 3, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01045-CR No. 05-15-01046-CR

SENRICK SHERN WILKERSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause Nos. F10-01183-J, F10-01184-J

MEMORANDUM OPINION Before Chief Justice Wright and Justices Myers and Brown Opinion by Chief Justice Wright Senrick Wilkerson was convicted of sexual performance by a child and sexual assault of

a child. The convictions were affirmed on direct appeal, as were the appeals from the denial of

his motion for post-conviction DNA testing related to the convictions. Wilkerson v. State, Nos.

05-11-00061–00062-CR, 2012 WL 2877623 (Tex. App.––Dallas July 16, 2012, pet. ref’d)

(convictions); Wilkerson v. State, Nos. 05-14-00007–00008-CR, 2015 WL 139387 2015 WL

139387 (Tex. App.––Dallas Jan. 12, 2015, no pet.) (DNA). The Court now has before it

appellant’s notice of appeal from the trial court’s presumed denial of his motion for petition for

bill of review. 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 standard to determine whether an appellate court has jurisdiction to hear and

determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is

authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting

Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). 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.).

The trial court has not issued an order ruling on appellant’s motion for a bill of review.

Moreover, regardless of what the document is named, the substance of the document is a

collateral attack on the judgments of conviction. Therefore, even had the trial court issued a

written order denying the motion, the order would not be appealable to this Court. As the Court

has recently stated in appeals brought by appellant collaterally attacking his convictions, see

Wilkerson v. State, Nos. 05-15-00978–00980-CR (Tex. App.––Dallas Aug. 18, 2015, no pet. h.),

the post-conviction habeas corpus procedure set out in the Texas Code of Criminal Procedure is

the sole procedure by which to collaterally attack final felony convictions. See TEX. CODE CRIM.

P. ANN. arts. 11.05, 11.07 (West 2015). That avenue of attack does not change simply because

appellant changes the title of the document he files. Further, this Court does not have

jurisdiction over such post-conviction habeas corpus proceedings. See id. art. 11.05.

–2– Accordingly, we dismiss the appeals for want of jurisdiction.

/Carolyn Wright/ Do Not Publish CAROLYN WRIGHT TEX. R. APP. P. 47 CHIEF JUSTICE 151045F.U05

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

SENRICK SHERN WILKERSON, On Appeal from the Criminal District Court Appellant No. 3, Dallas County, Texas Trial Court Cause No. F10-01183-J. No. 05-15-01045-CR V. Opinion delivered by Chief Justice Wright, Justices Myers and Brown 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, 2015.

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

SENRICK SHERN WILKERSON, On Appeal from the Criminal District Court Appellant No. 3, Dallas County, Texas Trial Court Cause No. F10-01184-J. No. 05-15-01046-CR V. Opinion delivered by Chief Justice Wright, Justices Myers and Brown participating. THE STATE OF TEXAS, Appellee

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

–5–