NO. 07-05-0398-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 6, 2006
______________________________
TERRY WAYNE STEWART,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251st DISTRICT COURT OF POTTER COUNTY;
NO. 33,132-C; HON. PATRICK PIRTLE, PRESIDING
_______________________________
On Motion to Dismiss
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
We vacate our previous order of abatement and reinstate the appeal.
Pending before the court is the State's motion to dismiss appellant's appeal from an order denying his "Petition for Bill of Review." Through that document, appellant attacks his final felony conviction, contending that the judgment was void. Statute provides that one seeking relief from a final felony conviction do so by petitioning the Texas Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 11.07, § 3 (Vernon 2005). Different procedures cannot be created by the individual seeking relief. Nor can the rules applicable to appealing civil matters be invoked as a means of attacking a criminal conviction.
So, because appellant attempted to attack a final felony conviction and did so through filing a "petition" with the local district court rather than the Court of Criminal Appeals, the district court had no jurisdiction over the matter. Nor does this court have jurisdiction to entertain appellant's effort to avoid his final felony conviction. Runnels v. State, 804 S.W.2d 278 (Tex. App.-Beaumont 1991, no pet.). In short, the Texas Legislature created the relevant procedure, and it must be followed.
Accordingly, we grant the State's motion to dismiss and affirm the trial court's judgment wherein it found it lacked jurisdiction.
Per Curiam
Do not publish.
e revocation hearing. This ultimately resulted in the trial court granting the State’s motion, revoking appellant’s community supervision, and sentencing him to five years imprisonment.
Through one issue, appellant argues that the trial court denied him due process because it predetermined the sentence without considering the alleged mitigation evidence he proffered or alternatives to revocation. We overrule the issue because appellant failed to raise it below. Such was and is required of one desiring to complain on appeal about the punishment assessed or the trial court’s purported failure to consider evidence. Cole v. State, 931 S.W.2d 578, 579-80 (Tex. App.–Dallas 1995, pet ref’d); accord Brumit v. State, No. 07-03-0462-CR, 2004 Tex. App. Lexis 10893 at *4-5 (Tex. App.–Amarillo December 2, 2004), aff’d on other grounds, 206 S.W.3d 639 (Tex. Crim. App. 2006) (not designated for publication) (so concluding); see also Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002) (acknowledging that one must object before the trial court to preserve complaints about the trial court predetermining the decision to revoke probation).
We further note that absent a clear showing of bias, a trial court’s actions will be presumed correct. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Here, we have no such “clear showing of bias.” That the trial court did not do what appellant wanted or what his probation officer recommended, without more, falls short of proving bias. This is so because that court (not appellant or the probation officer) has the discretion to decide whether to grant or deny a motion to revoke community supervision, Hart v. State, 264 S.W.3d 364, 372 (Tex. App.–Eastland 2008, pet. ref’d), and that discretion is “substantially absolute.” Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979); accord Hernandez v. State, No. 07-04-0372-CR, 2005 Tex. App. Lexis 9221 at *3 (Tex. App.–Amarillo November 4, 2005, no pet.) (not designated for publication) (so concluding). More importantly, the trial judge here revoked appellant’s supervision and levied sentence after stating that his decision was “based upon [appellant’s] plea of true and the testimony I’ve [heard]. . . .” That, at the very least, suggests it considered what was tendered by all involved, including appellant. Finally, due process does not require a court to indicate on the record that it considered alternatives to revocation. Atchison v. State, 124 S.W.3d 755, 759 (Tex. App.–Austin 2003, pet. ref’d), citing Black v. Romano, 471 U.S. 606, 616, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). Simply put, we see no “clear showing of bias” in the record before us.
Accordingly, we overrule appellant’s issue and affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.