Edwin H. Witherspoon v. State of Texas D/B/A Tarrant County, Texas ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00174-CV
EDWIN H. WITHERSPOON APPELLANT
V.
STATE OF TEXAS D/B/A TARRANT APPELLEE
COUNTY, TEXAS
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Edwin H. Witherspoon attempts to appeal the trial court’s order
dismissing his bill of review. Because the bill of review Witherspoon filed in the
1
See Tex. R. App. P. 47.4.
trial court seeks to set aside his underlying felony conviction and thirty-year
sentence, we do not have jurisdiction over this appeal.2
II. Background
On October 5, 2009, Witherspoon—an inmate in the Texas Department of
Criminal Justice proceeding pro se—filed in the trial court a document titled,
―Action at Equity for Bill of Review Seeking Remedy/Relief from Judgments; or in
the alternative, Action Ex Delicto[3] Seeking Cancellation of Judgments,
Supercedeas, and Unconditional Release.‖ Witherspoon alleged in that pleading
that he was arrested, detained, and indicted; that he pleaded guilty; and that
judgment was entered against him by the 213th Judicial District Court of Tarrant
County, Texas. Witherspoon received a thirty-year sentence.
Witherspoon further alleged that the judgment against him is void because,
among other things, there was no meeting of the minds. According to
Witherspoon, because bonds for criminal defendants are in actuality commercial
transactions, the commercial nature of the transaction should have been
disclosed to him, and the nondisclosure rendered his judgment void. In his
prayer, Witherspoon pleaded that ―he is a victim of EXTRINSIC FRAUD, and that
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Also pending before the court is Witherspoon’s ―Request for Extension of
Time and Access to Court with Order.‖ Given our determination that we do not
have jurisdiction over Witherspoon’s attempted appeal, we dismiss the motion as
moot.
3
―Ex delicto‖ means ―arising from a crime or tort.‖ Black’s Law Dictionary
649 (9th ed. 2009).
2
the judgment procured in cause number: C-213-006486-0781056-A [is] thereby
VOID.‖
On May 10, 2010, the trial court dismissed Witherspoon’s lawsuit, finding
that no defendant had been served and that Witherspoon’s claims were frivolous.
See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b) (West 2002) (granting
trial courts authority to sua sponte dismiss inmate lawsuits as frivolous if they
meet the statutory standards). Witherspoon filed a notice of appeal after filing a
motion for rehearing and requesting and receiving findings of fact and
conclusions of law.
III. Discussion
Code of criminal procedure article 11.07 sets forth the procedure for
applicants seeking relief from felony judgments imposing penalties other than
death, and it states in relevant part: ―After conviction the procedure outlined in
this Act shall be exclusive and any other proceeding shall be void and of no force
and effect in discharging the prisoner.‖ Tex. Code Crim. Proc. Ann. art. 11.07 §§
1, 5 (West Supp. 2011). In Ex Parte Mendenhall, Mendenhall filed an
―Application for Common Law Writ of Audita Querela,‖ which the court defined as
a ―writ available to a judgment debtor who seeks a rehearing of a matter on
grounds of newly discovered evidence or newly existing legal defenses.‖ 209
S.W.3d 260, 260–61 & n.1 (Tex. App.—Waco 2006, no pet.) (quoting Black’s
Law Dictionary 141 (8th ed. 2004)). Mendenhall alleged that the judgment
against him violated the separation of powers provision of the Texas constitution
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and that he had been denied due process and due course of law, and the court
wrote that ―Mendhenhall seeks by writ of audita querela to have his felony
conviction set aside.‖ Id. at 261. However, the court also held that ―an article
11.07 writ of habeas corpus is the exclusive means to accomplish this objective
in a collateral proceeding.‖ Id. Thus, the court dismissed Mendenhall’s appeal
for lack of jurisdiction. Id.
In Collins v. State, Collins filed a bill of review and contended that his 1997
driving while intoxicated conviction should have been set aside on double
jeopardy grounds. See 257 S.W.3d 816, 816 (Tex. App.—Texarkana 2008, no
pet.). Dismissing Collins’s appeal for lack of jurisdiction, the court noted the
unavailability of a bill of review in criminal cases and wrote that the ―Legislature
has limited [the] available collateral post-conviction remedies to that of habeas
corpus‖ pursuant to article 11.07. Id. at 817 (citing Ex parte Williams, 165 Tex.
Crim. 130, 303 S.W.2d 403, 405 (1957), overruled on other grounds by Ex parte
Taylor, 522 S.W.2d 479, 480 n.1 (Tex. Crim. App. 1975)).
It is clear from Witherspoon’s bill of review pleading that, like the
defendants in Mendenhall and Collins, he wishes to have his underlying criminal
conviction and thirty-year sentence set aside. But Witherspoon may seek that
post-conviction relief only pursuant to article 11.07. See Tex. Code Crim. Proc.
Ann. art. 11.07 §§ 1, 5; Collins, 257 S.W.3d at 817; Mendenhall, 209 S.W.3d at
260–61; cf. Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005) (setting forth
procedure for attempting to set aside felony or misdemeanor conviction involving
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community supervision). This court is therefore without jurisdiction to hear
Witherspoon’s attempted appeal. Collins, 257 S.W.3d at 817; Mendenhall, 209
S.W.3d at 260–61.
IV. Conclusion
Because code of criminal procedure article 11.07 provides Witherspoon’s
exclusive post-conviction procedure for setting aside his felony conviction and
sentence, we dismiss this appeal for lack of jurisdiction. See Tex. R. App. P.
43.2(f).
PER CURIAM
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DELIVERED: November 10, 2011
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