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 2014-09

John Wesley Patterson III v. State ( 2014 )


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  • 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
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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
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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
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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.
Judgment entered September 3, 2014
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