Opinion issued April 7, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00017-CR
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CHARLES RAY FOSTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Case No. 1439225
MEMORANDUM OPINION
On February 3, 2015, after appellant, Charles Ray Foster, pleaded guilty to
felony possession of a controlled substance, the trial court assessed his punishment
at ten years’ confinement, in accordance with his plea bargain with the State. The
trial court certified that this was a plea-bargain case and that appellant had no right
of appeal. This underlying judgment was not appealed and became final.
On December 4, 2015, appellant, proceeding pro se and incarcerated, filed a
post-conviction motion with the trial court styled as “Defendant’s Motion
Requesting A Due Process Review of Reducing His Illegal Sentence Tex. Const.
Art. 1, §29.” The trial court summarily denied appellant’s motion on December 7,
2015, by handwriting “Denied” on his cover letter, without signing a separate order.
On December 8, 2015, the trial clerk issued a separate memorandum response to
appellant informing him that the trial court had denied his motion.
On December 28, 2015, appellant timely filed a notice of appeal, attempting
to appeal from the denial order. After appellant filed a pro se appellant’s brief, the
State filed a motion to dismiss the appeal, contending that we lack jurisdiction.
Appellant filed a pro se “Appellant’s Motion to Proceed on This Appeal,” which we
construe as his opposition to the motion. We agree with the State, grant its motion,
and dismiss the appeal for lack of jurisdiction.
There is no constitutional right to appellate review of criminal convictions.
See Phynes v. State, 828 S.W.2d 1, 20 (Tex. Crim. App. 1992). The right to appeal
in criminal cases is conferred by the legislature, and a party may appeal only from
judgments of conviction or interlocutory orders authorized as appealable. See TEX.
CODE CRIM. PROC. ANN. art. 44.02 (West Supp. 2015); TEX. R. APP. P. 25.2(a)(2);
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see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). We do not
generally have jurisdiction over proceedings involving a collateral attack of a final
felony conviction because such proceedings are governed by Article 11.07 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07,
§ 5 (West Supp. 2015) (stating that, “[a]fter [a felony] 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”); see also Ater v. Eighth Court of
Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating Court of Criminal
Appeals is “the only court with jurisdiction in final post-conviction felony
proceedings.”).
In this case, appellant is not appealing from a judgment of conviction or
appealable interlocutory order. Instead, appellant’s motion in the trial court
collaterally attacks the merits of his felony conviction by requesting that the trial
court reduce his sentence from ten years in prison to two years’ imprisonment in a
state jail because he claims he was denied the effective assistance of counsel.
However, an article 11.07 writ of habeas corpus is the exclusive means to accomplish
appellant’s objective in a collateral proceeding. Although such a felony habeas
application must be filed with the trial court, the writ, which issues by operation of
law, “must be made be made returnable to the Court of Criminal Appeals of Texas
at Austin, Texas.” TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (West Supp.
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2015). Thus, this Court has no jurisdiction over an appeal from a ruling of the trial
court on a collateral attack of a final post-conviction felony proceeding. See In re
McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig.
proceeding) (“[O]nly the Texas Court of Criminal Appeals has jurisdiction in final
post-conviction felony proceedings.”); Smith v. Lynaugh, 792 S.W.2d 110, 112 (Tex.
App.—Houston [1st Dist.] 1990, no pet.) (holding that this Court lacks jurisdiction
over appeal from trial court’s ruling on post-conviction collateral attack).
CONCLUSION
Accordingly, we grant the State’s motion to dismiss, and dismiss this appeal
for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss all other pending
motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Keyes and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).
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