Frank Herrera v. State ( 2008 )

NO. 07-07-0299-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 5, 2008

______________________________

FRANK HERRERA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY;

NO. 2005-CR-2133; HONORABLE RANDY GRAY, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER ON MOTION

          Appellant Frank Herrera, appearing pro se, has filed a motion requesting release from the Comal County jail, apparently for the duration of the pendency of his petition for discretionary review by the Texas Court of Criminal Appeals. We will dismiss the motion for lack of jurisdiction.

          Herrera was convicted by a jury for theft of services of $500 or more but less than $1,500, on June 1, 2007. He timely perfected an appeal which was transferred to this court from the Third Court of Appeals under the Supreme Court’s statutory transfer authority. See Tex. Gov’t Code Ann. § 73.001 et seq. (Vernon 2005) (authority to transfer cases). We initially abated and remanded the case for, inter alia, determination of Herrera’s alleged indigency. Following a hearing, the trial court concluded Herrera was not indigent and therefore not entitled to appointed appellate counsel and a free appellate record. Herrera thereafter failed to make satisfactory arrangements for payment of the reporter’s record and clerk’s record. Finding Herrera received a reasonable opportunity to cure this failure, we dismissed his appeal for want of prosecution on January 10, 2008. Tex. R. App. P. 37.3(b). Herrera has filed a petition for discretionary review before the Texas Court of Criminal Appeals.

          In the instant motion, Herrera urges several factors, ranging from an involuntary plea in the trial court to the inability to adequately prosecute his appeal because of limited jail resources, warrant his immediate release from incarceration. No record or appendix accompanies Herrera’s motion nor does he complain of an order or ruling by a lower court.

          The original and appellate jurisdiction of a court of appeals is limited by the Texas Constitution and legislatively enacted statutes. Ex parte Wood, 125 S.W.3d 805, 806 (Tex.App.–Texarkana 2004, orig. proceeding). Herrera presents no authority authorizing us to grant his release from incarceration during the pendency of his petition for discretionary review and we are aware of none.

          To the extent Herrera seeks to affect this court’s January 10 judgment, we are without plenary power. Tex. R. App. P. 19.1(a) (in absence of motions altering period, plenary power expires sixty days after judgment). Because Herrera’s conviction was not reversed, we may not treat his motion as one for bail. See Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon 2007).

          Were we to treat Herrera’s motion as a petition for writ of habeas corpus, this court would lack jurisdiction. As noted, the appeal of Herrera’s conviction was transferred to this court from a sister court of appeals. The order did not extend the transfer to a future original proceeding such as a petition for writ of habeas corpus. See Tex. Gov’t Code Ann. § 73.002 (Vernon 2005) (specifying jurisdiction of transferred case); Varner v. Koons, 888 S.W.2d 511, 513 (Tex.App.–El Paso 1994, orig. proceeding) (transferee court had jurisdiction to dispose finally of case on appeal and to enforce its mandate, but no jurisdiction over future appeals). Herrera’s motion seeks release from restraint in Comal County which lies outside the territorial limits of this court’s jurisdiction. See Tex. Gov’t Code Ann. § 22.201 (Vernon Supp. 2007) (listing counties included in each appellate district of Texas). We would thus have no authority to act on a petition for writ of habeas corpus brought by Herrera. See Tex. Gov’t Code Ann. § 22.221(b) (Vernon 2004) (writ power of court of appeals extends to “judge of a district or county court in the court of appeals district.”).   

          Under the facts presented we conclude this court is without jurisdiction to consider the merits of Herrera’s motion for release from incarceration. Accordingly, we dismiss the motion for want of jurisdiction.

                                                                                      Per Curiam

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