Thomas Ray Braden, Jr. v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00226-CR
THOMAS RAY BRADEN, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
TRIAL COURT NO. 2008-0000041M-CR
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MEMORANDUM OPINION 1
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Appellant Thomas Ray Braden, Jr. filed a notice of appeal from the trial
court’s June 2015 order denying his “Motion for Reconsideration.” In that motion,
appellant appeared to challenge a final felony conviction. 2
1
See Tex. R. App. P. 47.4.
2
In 2012, another court of appeals affirmed this conviction. See Braden v.
State, No. 08-11-00034-CR, 2012 WL 1067192, at *5 (Tex. App.—El Paso
Mar. 28, 2012, no pet.) (not designated for publication).
On September 10, 2015, we sent a letter to appellant to inform him that we
received the notice of appeal and that we were concerned that we lack
jurisdiction because the trial court’s order is not appealable. We informed
appellant that unless he filed a response to our letter by September 21, 2015 that
showed grounds for continuing the appeal, it could be dismissed. See Tex. R.
App. P. 44.3. Appellant has not responded.
Generally, we have jurisdiction over a criminal defendant’s appeal only
when it arises from a judgment of conviction; we do not have jurisdiction to
review interlocutory orders or other orders unless that jurisdiction has been
expressly granted to us by law. See McKown v. State, 915 S.W.2d 160, 161
(Tex. App.—Fort Worth 1996, no pet.). We do not generally have jurisdiction
over proceedings related to a collateral attack of a final felony conviction. See,
e.g., Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996) (explaining
that the exclusive postconviction remedy with regard to final felony convictions is
through a writ of habeas corpus); Ater v. Eighth Court of Appeals, 802 S.W.2d
241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (“We are the only court with
jurisdiction in final post-conviction felony proceedings.”).
We are aware of no law that grants us jurisdiction over an appeal from an
order denying a postconviction motion that challenges the merits of the
conviction. Thus, because appellant has not directed us to any appealable order,
we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f); see
also Talkington v. State, No. 09-15-00320-CR, 2015 WL 5604471, at *1 (Tex.
2
App.—Beaumont Sept. 23, 2015, no pet. h.) (mem. op., not designated for
publication) (“Talkington has failed to show any authority granting an
intermediate appellate court jurisdiction to consider an appeal from the denial of
his post-conviction motion. Accordingly, we dismiss the appeal for want of
jurisdiction.”); Carter v. State, No. 07-14-00296-CR, 2015 WL 1612096, at *2
(Tex. App.—Amarillo Apr. 10, 2015, no pet.) (mem. op., not designated for
publication) (“[W]e have found no . . . authority supporting our jurisdiction to
entertain an appeal from [a] post-conviction motion to set aside [a] conviction.”).
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 12, 2015
3