Arturo Medina v. State ( 2014 )

Opinion issued April 15, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00117-CR
NO. 01-14-00118-CR
NO. 01-14-00119-CR
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ARTURO MEDINA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 9427214, 9427213, 9427947
MEMORANDUM OPINION
Appellant, Arturo Medina, was convicted of three felony murders in three
separate cases, trial court cause numbers 9427214, 9427213, and 9427947. See
TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011). On November 6, 1997, we
reformed the trial court’s judgments to delete the affirmative findings of a deadly
weapon and affirmed the judgments as reformed. See Medina v. State, 962 S.W.2d
83, 88 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Our mandate issued in
each case on June 8, 1998.
On September 30, 2013, Medina filed a “Motion for Nunc Pro Tunc” in the
trial court, asking the trial court to notify prison officials that we reformed his
judgments to delete the affirmative finding that a deadly weapon was used in each
case. On the same day, he filed a “Request for Hearing Setting Date,” a “Motion
for Bench Warrant-Live Appearance or by Telephonic Means,” and a “Motion for
Appointment of Counsel During Nunc Pro Tunc Proceedings,” requesting that the
trial court set a hearing on his “Motion for Nunc Pro Tunc,” that he be bench-
warranted to the trial court for the hearing, and that counsel be appointed to
represent him at the hearing. On November 11, 2013, Medina filed a “Second
Request for Hearing Setting Date,” which the trial court denied on November 26,
2013. On December 10, 2013, Medina filed a notice of appeal, with each trial
court cause listed in the caption, stating that he is “appealing the 180th District
Court’s denial of his motion for hearing filed before the 180th District Court on
November 26, 2013.”
We lack jurisdiction over these attempted appeals. As an initial matter, an
appellant generally may only appeal from a final judgment, and an “appeal does
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not lie from an order denying a request for judgment nunc pro tunc.” Hunt v. State,
No. 03-04-00343-CR, 2004 WL 1896994, at *1 (Tex. App.—Austin Aug. 26,
2004, no pet.) (not designated for publication); see State v. Sellers, 790 S.W.2d
316, 321 n.4 (Tex. Crim. App. 1990) (“A defendant’s general right to appeal . . .
has always been limited to appeal from a ‘final judgment,’ though the statute does
not contain this limitation on its face.”); Everett v. State, 82 S.W.3d 735, 735 (Tex.
App.—Waco 2002, pet. dism’d) (“No statute vests this Court with jurisdiction over
an appeal from an order denying a request for judgment nunc pro tunc.”). Thus,
Medina may not appeal from either an order denying his “Motion for Nunc Pro
Tunc” or an order denying his motion requesting that the trial court set a hearing
on his motion.
Further, only the Texas Court of Criminal Appeals has jurisdiction in final
post-conviction felony proceedings, which are governed by Article 11.07 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07
(West Supp. 2013); Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App.
1996); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth
Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); In re McAfee, 53 S.W.3d 715,
717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). “Courts of appeals
have no jurisdiction over post-conviction writs of habeas corpus in felony cases.
Article 11.07 contains no role for the courts of appeals.” In re Briscoe, 230
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S.W.3d 196, 196 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (internal
citations omitted). “Should an applicant find it necessary to complain about an
action or inaction of the convicting court, the applicant may seek mandamus relief
from the Court of Criminal Appeals.” In re McAfee, 53 S.W.3d at 717. Because
Medina’s convictions became final on June 8, 1998, this is a final post-conviction
felony proceeding, and we have no jurisdiction over these appeals. See In re
Havard, No. 09-12-00217-CR, 2012 WL 1884168, at *1 (Tex. App.—Beaumont
May 23, 2012, no pet.) (not designated for publication) (holding that “complaints
concerning clerical errors in judgment that are final and non-appealable are
required to be filed in the Court of Criminal Appeals”); In re McAfee, 53 S.W.3d at
717–18 (holding that petition for writ of mandamus complaining of action or
inaction by trial court must be filed in Court of Criminal Appeals).
Accordingly, we dismiss the appeals. See TEX. R. APP. P. 43.2(f). We
dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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