in the Interest of E.R.H., a Child

In the Interest of E.R.H., a Child

IN THE

TENTH COURT OF APPEALS

No. 10-99-002-CV

IN THE INTEREST OF E.R.H., A CHILD

From the 170th District Court

McLennan County, Texas

Trial Court # 98-417-4

                                                                                                              

MEMORANDUM OPINION

                                                                                                              

      Appellant Steven Alba Honey filed a notice of appeal with the trial court clerk on December 23, 1998. No further action has been taken in this proceeding. Honey was notified by letter dated February 3, 1999, that he had ten days to pay the fee to prepare the clerk’s record, make arrangements to pay the fee, or file an affidavit of indigence with the trial court or his appeal would be dismissed for want of prosecution. Tex. R. App. P. 37.3(b). The Court has been informed that Honey was released from prison and left no forwarding address.

      Honey has not contacted this Court since his release to inform the Court of his new address. He has not paid the clerk’s fee, nor has he filed an affidavit of indigence. We therefore dismiss his appeal for want of prosecution. Id.

                                                                         PER CURIUM

Before Chief Justice Davis,

            Justice Vance, and

            Justice Gray

Dismissed

Opinion delivered and filed June 30, 1999

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David Murphy,

  Appellant

 v.

 

The State of Texas,

                                                                      Appellee

 

 

 

From the 52nd District Court

Coryell County, Texas

Trial Court # FT-04-17251

 

MEMORANDUM  Opinion

 

          David Murphy filed a notice of appeal on November 8, 2004.  He was convicted on August 13, 2004.  The Clerk of this Court notified Murphy that we questioned our jurisdiction and gave him 14 days to show us why this appeal should be continued. 

          The only response we have received is a request for the appointment of counsel.  We have no authority to appoint counsel.  Enriquez v. State, 999 S.W.2d 906, 907-08 (Tex. App.—Waco 1999, order). 

          If Murphy is attempting to appeal his underlying conviction, his notice of appeal is untimely, and we have no jurisdiction of the appeal.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.  1996).

          If Murphy is attempting to appeal the denial of his article 11.07 application for writ of habeas corpus filed on September 27, 2004, we have no jurisdiction over that determination.[1]  See Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 1977); see also Nix v. State, 65 S.W.3d 664, 670 n. 26 (Tex. Crim. App. 2001).

          The order referenced in Murphy’s notice of appeal specifically requires the District Court Clerk to “prepare a transcript of all papers in cause number 17,251 and WHCP-04-17,251-A and transmit same to the Court of Criminal Appeals, as provided by Article 11.07 of the Texas Code of Criminal Procedure.”  The record we have received appears to be the referenced transcript.  Accordingly, the Clerk of this Court is ordered to immediately forward the record, which has all the indicia of a record for a writ of habeas corpus over which we have no jurisdiction, to the Court of Criminal Appeals.

          Accordingly, this appeal is dismissed.

 

                                                                   TOM GRAY

                                                                   Chief Justice

 

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal dismissed

Opinion delivered and filed February 16, 2005

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[1] Murphy has filed a subsequent writ with the trial court on December 3, 2004.  That writ is not the subject of this appeal.