Patterson, John Wesley

ISZhtH
CAUSE NO. PD-1521-14

RECEIVED IN
COURT OF CRIMINAL APPEALS
IN THE

TEXAS COURT OF CRIMINAL APPEALS
JAN 15 2015

AUSTIN, TEXAS
Abe! Acosfa, Clerk

OOHN UESLEY PATTERSON, III,
Petitioner,

FILED IN
v. COURT OF CRIMINAL APPEALS

JAN 2 3 2::5
THE STATE OF TEXAS
Respondent.
Abel Acosta, Clerk

ON PETITION FOR DISCRETIONARY REVIEU FROM

THE FIFTH SUPREME JUDICIAL COURT OF APPEALS

DALLAS COUNTY, TEXAS

CAUSE NO. 05-14-01098-CR

PETITION FOR DISCRETIONARY REVIEW

JOHN UESLEY PATTEBBON, III 1375031
Petitioner pro se
Eastham Unit
2665 Prison Rd. #1
Loveladyiji Texas 75851
 TABLE OF CONTENTS

INDEX OF AUTHORITIES i.

STATEMENT REGARDING ORAL ARGUMENT ii

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 11

GROUNDS FOR REVIEW 3

ARGUMENTS AND AUTHORITIES 3

PRAYER 9

DECLARATION AND CERTIFICATE OF SERVICE 9

>
 INDEX OF AUTHORITIES

CASE PAGE

Ex parte Augustos, 639 S.W.2d 481 (Tex.Crim.App.) B$h 5
Ex parte Benfield, 697 S.W.2d 420 (Tex.Crim.App.) t?9k .. 5
Casias v;.State, 503 S.W.2d 262, 263 (Tex.Crim.App.1973) 2

Davis yv State, 968 S.W.2d 368, 372 (Tex.Crim.App.1998) 6

Diremiggio v. State, 637 S.W.2d 926 (Tex.Crim.App.1982) ii

Ellis v. State, (Cr.App.38) 134 Tex.Crim.(115 S.W.2d 660) 3

Fletcher yv State, 214 S.W.3d 57 (Tex.Crim.App.2007). 7

Hickman v. State, 548 S.W.2d 736 (Tex.Crim.App.1977) 5

Jones v. State, 711 S.W.2d 634; 636 (Tex.Crim.App.1986) 7

Gordon v. State, 256; S.W.3d 286, 292 (Tex.Crim.App.2008) 7

Gordon v. State, 36 S.W.3d 671, 673 (Tex.Crim.App.2001).. 3

Menefee v. State, 175 S.W.3d 500, 506 (Tex;App.-Beaumont2005) ii

Ex parte Murchinson, 560 S.W.2d 654, 656 (Tex.Crim.App.1978) iii

Nolan v. State, 102 S.W.3d 231, 243 (Tex.App;.-Houston [14th Dist.]2003) 5

Ex parte Quidrke, 710 S.W.2d (Tex.Crim.App.1986) 5

Rich v. State, 194 S.W.3d 508, 513 (Tex.Crim.App.2006) .7

Scott. ;v. State, 55 S.W.3d 593, 596 (Tex.Crim.App.2001) 5

Skillerno v. State, 890 S.W.2d B49i:(Tex.App.-Austinl994) 3

Spiers v. State, 552 S.W.2d (Tex.Crim.App.1977) 4

Ex parte Swell, 742 S.W.2d 393 (Tex.Crim.App.) 5

Thomas v. Long, 207;;S.W.3d 334, 340 (Tex.2006) 7

Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App.1987) 7

CONSTITUTIONAL!

U.S. Constitution Amendments VI & XIX 4

Texas Constitution, Art. I, §10 4-5
Texas Constitution, Art. V, §7 7
i.
 INDEX OF AUTHORITIES (cont.)

RUliiES AND ARTICliES

FEDERAL RULES OF EVIDENCE, RULE 201 6

TEXAS CODE OF CRIMINAL PROCEDURE, ART. 42.03(1) (a) . 1
TEXAS RULES OF APPELLATE ORICEDURE, RULE 68 1

TEXAS RULES OF APPELLATE PROCEDURE, RULE 60:3 i

TEXAS RULES OF APPELLATE PROCEDURE, iRULE 25.2(a)(2).... 7

TEXAS RULES OF APPELLATE PROCEDURE, RULE 47.17... 7

TEXAS CODE OF CRIMINAL PROCEDURE, ART. 42.03(1) (a) 1

QTHES

TEXAS CCDViBLi-PROCEDURE AND REMEDIES CODE, §<32,001 et.seg 9

i(a)
»

2 STATEMENT REGARDING ORAli ARGUMENT

The Petitioner requests oral argument and appointment of counsel. This case

Biquires reexamination of Diremiggio v. State, 637 S.W.2d 926 (Tex.Crim.App., 19B2),

Ex parte Lahgiy, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992), Ex parte Murchison,
i
560 S.W.26654., 656 (Tex.Crim.App. 1978), and Menefee v. State, 175 S.W.Sd 500, 506

(Tex.App.-Beaumont 2005, no pet.), which created the distinction of the law on

prior enhancements before 1997. Because this case requires inquiry into multiple

aspects of the cases herein, firomspreservation to application, and the latter fact-

intensive, oral argument uill be helpful to the Court.

n.
¥

TO THE HONORABLE JUDGES OF SAID COURT:

NOW COMES JOHN WESLEY PATTERSON, III, Petitioner, pro se, and pursuant to

Tex.R.App.Proc., Rule 68, et. seq., presents this Petition for Discretionary

Revieu and in support thereof, whould show this Honorable Court as fgllows and

respectfully asks the Court to grant the petition pursuant to Tex.R.App.Proc,

Rule 60.3

STATEMENT OF THE CASE

On March 24, 2006, Mr. Patterson was found guilty in Cause No. 416-82554-

65. Mr. Patterson was sentenced on M^y 22, 2006, and received a life sentence

due to a single enhancement and on appeal to the 5rh Court of Appeals;and was

affirmed with a mandate showing the cause to be a,con\l/ction for a second degree

felony, not a first degree.

Mr. Patterson was bench warranted to the trial court where a hearing was held

before the court,ciwith Mr. Patterson not represented by counsel and the court made

no ruling. However, the court later made a notation in the docket sheet that ^count

7 was a finding of not guilty but the court made no mention of the 1st degree being

reduced to a 2nd degree. The trial court's Clerk's summary sheet to the Court

of Criminal Appeals reflects that both counts;have reduced to a 2nd degree felony.

At this time Mr. Patterson has a continuance of a life.sentence showing by

the Texas Department of Criminal Justice-*-Classification Division.

STATEMENT OF PROCEDURAL! HISTORY

On November 29, 2007, the court of appeals affirmed as modified Mr. Patterson's

conviction, and remanded for modification on punishment. Patteerson v. State,fNo.

05r306-OO876-CR (Tex.App.-Dallas, no pet),.,;not designated for publication. On

December 13, 2007, per order of the court (trial)<-,iubiiit without counsel and without

pronouncement. (See Tex.Cd.Crim.P., ar 42.03(1)(a)(Vernon's Supp.2007)(providing

that a felony sentence must be pronounced in the defendant's presence). See also
»

Casias v. State, 503 S.W.2d 262, 263 (Tex.Crim.App.1973)(Felony defendant may not

waive the right to be present at sentencing).

On October 31, 2013, Mr. Patterson ftpoose Petition for Writ of Mandamus ;:

was submitted to the 5th Court of Appeals. The Court of Appeals denied the mandamus.

On November. 6, 2003, Mr. Patterson submitted his Motion for Nunc Pro Tunc Ruling

to the trial court for bench warrant for proper sentencing, due to the trial court's

refusal to issue a ruling on his motion. An order was entered December 2, 2013,

in Cause No. 05-13S01534-CV by the appellate court reference the petition for mandamus

wherein the court granted in part and denied in part with opinion denying the

mandamus. On March 10, 2014, Mr. Patterson submitted his Motion to Vacate and

Dismiss and set aside a prior, void enhancement. On July 11, 2014, he filed his

Motion Requesting Compliance with Texas Motion Ministerial Duties to the trial

court.nfOn July 16, 2014, Mr. Patterson submitted his motion requesting compliance

to Texas motion ministerial duties.

On July 29, 2014, upon an order from the trial court denied Mr. Patterson's

motion for nunc pro tunc ruling, motion to vacate and set aside a ruling and motion

for compliance. On August 23, 2014, Mr. Patterson submitted his notice of appeal

to the court of appeals and acknowledgement of receipt by the court September.r3,

2014.

On September 19, 2014, Mr. Patterson submitted his Motion for Reconsideration

and Reharing to the 5th Court of Appeals. On September 23, 2014, the appellate

court granted the extension to October 6, 2014, along with the State's time to

respond byrd0ctober 20, 2014. On October 14, 2014, by order of the appBilate-ieoQirty
denied the motion for rehearing. The appellate court had already submitted their

memorandum and opinion on September 3, 2014.

This Petition for Discretionary Review is due before the Court by 'ai'ciaary..

12, 2015.
 GROUNDS FOR REVIEW

i. Did the trial court err by denying Mr. Patterson's Motion to Vacate and dis
miss and Set Aside Prior Void Enhancement without a hearing?
."J

2. Did Mr. Patterson suffer actual and egregious harm from the enhancement sub
mission of an 1984 probated sentence that was suspended and probateddand
complete without revocation in 1991, at punishment?

3. Did the trial, court err by not pronouncing the new sentence on punishment
as ordered by the appellate court in their affirmation and remand without
Mr. Patterson present?

4. Did the trial court err by not ordering notification to the Texas department
of Criminal Justice-Classification Division of the modified or modification
of the Mandate orders?

ARGUMENTS AND ATHORITIES

1, Did the trial court err by denying Mr. Patterson's Motion to Vacate
and Dismiss and Set Aside Brior Void Enhancement without a heasring?

2. Did Mr. Pa;tterson suffer actual and egregious harm from the enhancement sub
mission of a 1984 probated sentence that was suspended and probated and
completed without revocation in 1991, at punishment?

When a petitioner argues, correctly, that there was not any evidence*to support
the State's required elements of their Notice of Intent to Use a-Prior Conviction
for Enhancement, he is asking the Court for review and fact findings on his motion
orr. hearing.
In Texas it is well settled thst a probated sentence is not a final conviction

for enhancement purposes until it is revoked. See Ex parte Langly, 833 S.W.2d 141,
143 (Tex.Crim.App. 1993), citing Ex parte Murchison, 560 S.W.2d 6541',''656 (Tex.Crim.
App. 1978) (For enhancement purposes, prior convictions must be final);vjordon v.

State, 36 S.W.2d 671, 873 (Tex.Crim.App.J2001). See also Skillerno v. State, 890

S.W.2d 849, 8 9 (Tex.App.-Austin 1994, no pet.)(Concluding that if the sentence

is suspended, then the conviction does not become final for purposes of enhancement).

"Where a suspended sentence is imposed <[ias Mr. Patterson's was] the conviction may

not be relied on as a basis for punishing appellants as a habitual criminal.") Ellis

v/Stater, (Cr.App. 1938) 134 Tex.Crim. 346 (115 S.W.2d 660).
 Mr. Patterson was harmed and he challenges and avers the State's Notice of

Intentcto Sentence him under the repeat offender provision under Tex.P.Cd., §12.42
1
(c)(2) and its alleged paragraph of a probated sentence as a prior final conviction.

His enhancement to a life sentence was based on these Notices and the State request

ing the Court to take judicial notice of the contents of the Court's file in Cause

number FB4-215-M, (3r(84)i in which the contents of that file were never presented

or discussed in open court in his punishment hearing. (See Rr Vol. 8, Pg. 6,

Lines 10-15) of the punishment hearing of May 23, 2006, in Cause Nos. 416-82554-

05 and 416-82555-05). The State failed to make a prima facie showing thsttthe prior

alleged in the repeater paragraph was a final conviction and that it wzs suspended

sentence and could not be used to increase the punishment. (See Diremiggio at ii

of this petition)(We accordingly hold that the state failed to make a prima facie

showing of finality).

In connection with §12,42 of the Texas Penal Code enhancement provision and

their predecesssors, the courts have held uniformlyay that the prior conviction
must be a:final convition. (emphasis added) See Jordan v. State, 36 S.W.3d 871,

873 (Tex.Crim.App. 2001), citing Langly, supra; Murchison, supra, Ex parte Menefee
v. State, 175 S.W.3d 500, 506 (Tex.App-Beaumont 2005); Spiers ;v. State, 552 S.W.Sj5
851 (Tex.Crim.App. 1977)(Showing suspended sentence wss never revoked, and "sbsent
proof of conviction cannot be used for enhancement).
The State did not offer any proof that Mr;^Pstterson's probated suspended sen

tence was a final convictionnand that tit could be used for enhancement purposes.

There was no evidence, no plea of true, but merely insufficient evidence to support
the enhancement reaching the level of violation of Due Process and Equal Protection

of the Law under the U.S. Constitution's 6th iand 14th Amendments and the Texas
Constitution, Art. I, §10.

This Honorable Court has held in several cases thst :when the State seeks to

have a defendant declared to be, and punished, as an "hsbitusal criminal" by so

alleging in the indictment of notice of intent and attempting to ^establish those

allegations during the punishment stage of the trial, and it is later found on

appeal thst the evidence is insufficient to sustain the enhancement paragraph

allegations, the punishment is void and the sentence, will be set aside and the

cause will be remsanded to the trial court to reassese punishment.

The Texas Legislature has held that if reversible error is found to exist

in the punishment stage of the trial; the defendant will only receive a new trisl.'on

the issue of punishment. (Effective 70th Leg. ch. 179, pg. 2711, Section 1, now

Art. 44.29(b), V.A.C.C.P.). See Ex rparte Swell, 742 S.W.2d 393 (Tex.Crim.App.)' Ex

perte Benfield, 697 S.W.2d 420 (Tex.Crim.App. 1986); Ex parte Augustos, 639 S.W.2d

481 (Tex.Crim.App. 1982); Hickman v. State 548 S.W.2d 736 (Tex.Crim.App 1977);

Ex parte Ouidrke, 710 S.W.2d (Tex.Crim.App7 1986).

Mr. Patterson avers, that his prior cause wss not available for enhancement

purposes since he successfully served out his probation. Consequently, the enhance

ment, prior to the Texas Legislature's Acts 1997, 75th Leg., ch. 6677 §7, was not
available for enhancement. See Scott fly. State, 55 S.W.3d 593, 596 (Tex.Crim.App.

2006)("...An offense committed before the effective date of this Act is covered

by the law in effect when the offense was committed, and the former law is contin
ued for that purpose"). See slso Nolan v. State, 102 S.W.3d 231, 243 (Tex.App;?
Houston [14th Dist.] 2003, pet. ref'd)(John S. Anderson, Justice concurring)("When

the Legislature increaes punishment by the removal of a ststutory restriction, thst

increase;violates the ban on ex post facto laws). Because section 12.42 increased
Mr. Pstterson's punishment by removing a restriction on the use of his 1984 offense,

it is an ex post facto law. Before 1997,- the suspended probated sentence was not

5
 deemed a conviction under the repeater offender statute. See Davis v. State. 968
S.W.2d 36B, 372 (Tex.Crim.App.1998).

Mr. Patterson continues to assert that the trial court erred and the State

violated the federal constitutional prohibition against ex post facto laws by per
mitting the use of Mr. Patterson's 1984 suspended, probated sentence to enhance
punishment under 12.42(c)(2) of the Texas Penal Code, which did not exist in 19B4.

Therefore, his lack of a conviction and non-finalty based on his completion of
community, supervision in 1991, was retroactively converted to a conviction by Tex.
P.Cd. §12;42(G)(1) by the State. See Exhibit A. Once again, when the legislature
increases punishment by the removal of a statutory restriction, that increase vio
lates the ban on ex post facto in situations such as Mr. Patterson's.
Nolan, supra.

Because §12.42(G)(1) increased Mr. Patterson's punishment by removing a restriction
on the use of his 1984 offense, it is a violation of an ex post facto law. See

Acts, 1975, 64th Leg. R.S. ch. 231, §1, sec. 3d(C), 1975 Tex.Gen.Laws 572, 573

[Specifically provided that a dismissal and discharge would not be deemed a con
viction] .

Mr. Patterson herein cites Perry v. State, Tex.App. Lexis 2935 (2009) at §IVv
#2. The judgment in that case reveals on its face that Perry was sentenced to

three years imprisonment, but such sentence was suspended and he was place on

probation. In Perry's case;:there was no evidence that Perry's probated sentence
was ever revoked.

In Mr. Patterson's file of 1984 case there was no evidence that his probated

sentence was ever revoked. In fact the Docket Sheet shows that it was not. (See Pg.
3 of Docket Sheet). The Perry case conviction was not final for enhancement pur
poses, as also Mr. Patterson's and the State should not have been allowed to rely

on that oWen's'e for 'efiharieement; it Where a defendant receives a probated sentence

and that probation is never revoked the conviction is not final. In Mr. Patterson's
6
enhancement the State failed to make a prima facia showing of finality.

The proper remedy should be to vacate, set aside and dismiss the void enhance

ment. Fletcher v. State, 214 S.W.3d 57 (Tex.Crim.App.2007); Jones v. State, 711

S.W.2d 634, 636 (Tex.Crim.App. 19B6).

In Rich v. State, 194 S.W.3d 508, 513 (Tex.Crim.App. 2006), vac. and remanded)

(stating that when there is error at the punishment phase, the case may be remanded

for the proper assessment of punishment. The State.conceded that the enhancement

was improper and that the cause should be remanded for a new punishment hearing).

See also Tomlin v. State, 722 S.W.2d 702, 705 (Tex.Crim.App. 1987); Jordan v. State,

256 S.W.3d 286, 292 (Tex.Crim.App. 2008)(stating the error may not be deemed harm

less) .

3. Did the Court of Appeals err by denying Mr. Patterson's Appeal for Want of
Jur jurisdiction?

In Texas, district courts are courts of general jurisdiction with the power

to hear and determine any cause that is cognizable by the courts of law or equity

and to grant relief that could be granted by either courts of law or equity.

See Thomas v. LOng, 207 S.W.3d 334, 340 (Tex.2006)(stating "District Court jurisdic

tion consists of exclusive, appellate, and original jurisdiction of all action,

proceeding, and remedies, except in cases where exclusive, appellate, original

jurisdiction may be conferred by this Constitution or other law on some other court,

tribunal or administrative body"). See Tex. Courts V, BB.

The Court of Appeals in.lits memorandum opinion and judgment on September 3,

2014, in the Appellant Cause No. 05-14-0109B-CR and No. 05-14-01100-CR (At this
time Mr. Patterson would ask this Honorable Court to take judicial notice pursuant

to Fed.R.Evis., Rule 201 that since the Eastham Unit of the TDCJ-CID does not allow

prisoners t make copies of documents, legal or otherwise and as such is unable

to furnish the Court a copy of the court of appeals memorandum opinion) was disrn^

missed for want of jurisdiction. Mr. Patterson avers that in the Court's opinion,
7
 the court failed to cite or focus on an appellate procedure rules that would show,

allude or conclude they lack jurisdiction over the appeals. The Tex.R.app.Proc.

requires the courts of appeals to address "every issue raised and necessary to

final disposition of the appeal." See Tex.R.App.Proc. 47.1. The court did not

address every issue Mr. Patterson raised for review, herein. As stated and noted,

court of appeals "the court of appeals [u]nder the provision of the 19B0th Amend

ment to Art. V, Section 6 reads, the decison of said court [Courts of Appeals[

shall be conclusive on all questions of fact brought before them on appeal

or error." Tex. Const, art V §6.

In recognizing that the Texas Constitution gives the courts of appeals con

clusive authority to determine the factual sufficiency of an affirmative claim

or defense. The Texas Court of Criminal Appeals stated: "Within Art. V, §6, oper

ates to limit our jurisdiction and confers conclusive jurisdiction to the courts

of appeals to resolve questions of weight and preponderance of the evidence ade

quate to prove a matter that the defendant must prove."

Moreover, when the courts of appeals are called upon to excercise their fact

jurisdiction that it examine whether (the Appellant) prove his claim or defense

or other fact issue where the law has designated that the defendant has the burden

of proof by a preponderance of the evidence, (the correct standard of review is

whether after considering all the facts and evidence relevant to the issue at hand,

the judgment is so against the greate weight and prepondurance of the facts and

evidence so as to be manifestly unjust). Therefore due to the Texas Constitution,

Art. V, §6,-: Mr. Patterson avers that the Court of Appeals does have jurisdiction

as the record will reveal his appeal is not reference to an application for writ

of habeas corpus regarding a final conviction, but only asks the Court to review

the improperruling of the trial court reference to his foregoing motion.

Under Rule 25.2, Tex,R.App.P., a defendant may appeal any appealable order

or judgment, such as in the instant case. Rule 25.2(a)(2).
 PRAYER

FOR ALL THE REASONS Mr. Patterson prays this Honorable Court will GRANT this

Petition for Discretionary Review, appoint counsel and either grant relief or re

mand the cases back to the Court of Appeals for the Fifth Circuit for resolution

of the issues.

So prayed this Petition will be granted in all things.

Respec

JOHN WESLEY PATTERSON, III 1375031
Petitioner pro se
Eastham Unit
2665 Prison Rd. #1
Lovelady, TX 75851

DECLARATION/CERTIFICATE OF SERVICE

I, John Wesley Patterson, III, TDCJ-CID. No. 1375031, being presently incarcerated

in the Eastham Unit of the TDCJ-CID.. in Houston County, Texas, declare under penalty

of purjury that the facts and statements in the above and foregoing Petition are

true and correct pursuant to Texas Civil Procedures and Remedies Code, §132.001

et. seq.

I further declare and certify that a copy of the Petition has been forwarded

on this the 10th day of January, 2014, first class postpaid, addressed to: State

Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.

Executed on this the 10th day of January, 2015.

JOHN WESLEY PATTERSON, III 1375031
Petitioner pro se
SftM^ for- •/s-JLO-^/p

EXHIBITS A & B
 1 I

No. 416-82554-05
416-82554-05

THE STATE OF TEXAS § IN THE 416TH JUDICIAL

VS. § DISTRICT COURT OF

JOHN WESLEY PATTERSON § COLLIN COUNTY, TEXAS

STATE'S NOTICE OF INTENT TO USE PRIOR CONVICTIONS FOR

ENHANCEMENT

Pursuant to § 12.42 and §12.35 of the Texas Penal Code, comes now, the State of Texas, by and
through its Assistant Criminal District Attorney and hereby gives the defense formal notice of its
intent to present evidence of the following convictions in the trial of the above-styled and
numbered cause for the purpose ofenhancing the applicable range ofpunishment. The following
final convictions occurred prior to the commission ofthe above numbered offense now pending.

Offense Cause no. County. State Disposition

Sexual Assault F-84-215-M Collin County, Texas 6 years probated 6
of Lori Laughlin years

The above mentioned offenses are convictions the State intends to use for enhancement
purposes in the trial ofthis cause. They are not intended to be an all-inclusive list ofpunishment
evidence the State intends to offer.

Respectfully submitted,

Kristi Tyler
^>
Assistant Criminal District Attorney
C3' Collin County, Texas
Bar No. 24031717
S ii
 1
Certificate of Service

Thisis to certify that a true and correct copy of the State'sNoticeof Intent to usePrior Convictions for
Enhancement was mailed certified on the (/^ day of J///im^A2005, to the defendant's attorney,
Alan K. Taggart, 117 South Tennessee, McKinney, Texas 75069 and via fax to 972-547-6185.

Respectfully submitted,

<^3§^2i
Knsti Tyler 1
Assistant Criminal District Attorney
Collin County, Texas
Bar No. 24031717
 NO. 416-82554-05
416-82555-05
296-81371-03
296-81372-03

STATE OF TEXAS § INTHE 416th

VS.
§ DISTRICT COURT

JOHN WESLEY PATTERSON 6 COLLET COUNTY, TEXAS

STATE'S NOTICE OF INTENTTO SENTENCE DEFENDANT UNDERTHE REPEAT
OFFENDER PROVISION OF TPC 12.42(c)(2)

COMES NOW, THE STATE OF TEXAS, and announces her intention to present evidence
from which the Defendant, JOHN WESLEY PATTERSON, may be sentenced under the repeat
offender provision ofTPC 12.42(c)(2), setting the punishment at confinement for LIFE in the
Institutional Division ofthe Texas Department ofCriminal Justice. The prior felony conviction
which the State plans to introduce into evidence is as follows:
1. On July 11,1985 the Defendant, JOHN WESLEY PATTERSON, wasj^enced to
six(6) years confinement probated for six (6) yearsjor the offense ofSexual Assault, in
Cause No. F-84-215-M in 219th Judicial District Court of Collin County, Texas, for an
offense committed on or about October 5,1984. Onthe docket of said court, JOHN
WESLEY PATTERSON, was duly and legally convicted, as defined in the Texas Penal
Code, ofSexual Assault, in acase then legally pending in said last named court and of
which said court had jurisdiction; and said conviction was a final^onvjction prior to the
commission oftheoffense as set forth in cause numbers 416-82554-05, 416-82555-05,
296-81371-03, and 296-81372-03.

^06 FEB 23 AH10--29
^TR!6J.aErK
G.3Ll'-iK £(.!JV;Y. TLa*^
n n
Dismissed and Opinion Filed September 3, 2014

In The

Court of Appeals
ifftftlj Bistrtct of Qtexas at Dallas
No. 05-14-01098-CR
No. 05-14-01100-CR

JOHN WESLEY PATTERSON III, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 416th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 416-82554-05, 416-82555-05

MEMORANDUM OPINION
Before Justices Francis, Myers, and Lewis
Opinion by Justice Francis
John Wesley Patterson was convicted of multiple counts of aggravated sexual assault of a

child, sexual assault of a child, and indecency with a child, as alleged in separate counts in two

indictments. On direct appeal, this Court modified the trial court's judgments to correct

inaccuracies, and affirmed as modified. We also remanded for punishment as to one of the

counts included in trial court no. 416-82554-05 and ordered the trial court to enter new

judgments reflecting the modifications setout in our judgments. Patterson v. State, Nos. 05-06-

00808-CR, 05-06-00876-CR (Tex. App.—Dallas Nov. 29, 2007, no pet.) (not designated for

publication).

On November 13, 2013, appellant filed a "motion for nunc pro tunc ruling." On March

10, 2014, appellant filed a "motion to vacate and dismiss and set aside a prior void
enhancement." On July 16, 2014, appellant filed a "motion requesting compliance with Texas

motion ministerial duties," in which he appears to be seeking a ruling on his "motion for nunc

pro tunc ruling." On July 29, 2014, the trial court, by written order, denied appellant's pro se

motions. These appeals followed. We conclude we lack jurisdiction over the appeals.

"Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. The right to appeal in a criminal case is a statutorily created right. See McKinney v.

State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex.

Crim. App. 2004). See also TEX. CODE Crim.P. ANN. art. 44.02 (West 2006) (providing right of

appeal for defendant); Tex. R. App. P. 25.2(a)(2) (rules for appeal by defendant). Appellate

courts may consider appeals by criminal defendants only after conviction or the entry of an

appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).

An order denying a motion seeking nunc pro tunc reliefis not appealable. See Sanchez v.

State, 112 S.W.3d 311, 312 (Tex. App.—Corpus Christi 2003, no pet.) (per curiam); Everett v.

State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, no pet.); Allen v. State, 20 S.W.3d 164, 165

(Tex. App.—Texarkana 2000, no pet.). See also Abbott v. State, 271 S.W.3d 694, 696-97 (Tex.

Crim. App. 2008) (appellate court lacked jurisdiction to review appeal order denying motion for
additional time credit); State v. Ross, 953 S.W.2d 748, 752 (Tex. Crim. App. 1997) (suggesting

mandamus properway to challenge denial of nunc pro tuncjudgment).

Moreover, appellant's "motion to vacate and dismiss and set aside a prior void

enhancement" is, in substance, a collateral attack on the prior felony conviction used to enhance

appellant's sentences and thus the sentences themselves. However, the post-conviction habeas
corpus procedure set out in the Texas Code ofCriminal Procedure isthe sole procedure by which

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to collaterally attack final felony convictions, and this Court does not have jurisdiction over post

conviction habeas corpus proceedings involving final felony convictions. See TEX. Code Crim.

P.Ann, arts. 11.05, 11.07 (West 2005 & Supp. 2013).

Accordingly, we dismiss the appeals for want ofjurisdiction.'

Do Not Publish /Molly Francis/
Tex. R. App. P. 47 MOLLY FRANCIS
141098F.U05 JUSTICE

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 doiirt of Appeals
ifltftlj district of (teas at Ballas
JUDGMENT

JOHN WESLEY PATTERSON III, On Appeal from the 416th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 416-82554-05.
No. 05-14-01098-CR V. Opinion delivered by Justice Francis,
Justices Myers and Lewis participating.
THE STATE OF TEXAS, Appellee

Based on the Court's opinion of this date, we DISMISS the appeal for want of
jurisdiction.

Judgment entered September 3, 2014

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 Court of Appeals
iffiftlj Btstrtct of (teas at Hallas
JUDGMENT

JOHN WESLEY PATTERSON III, On Appeal from the 416th Judicial District
Appellant Court, Collin County, Texas
Trial Court Cause No. 416-82555-05.
No. 05-14-01100-CR V. Opinion delivered by Justice Francis,
Justices Myers and Lewis participating.
THE STATE OF TEXAS, Appellee

Based on the Court's opinion of this date, we DISMISS the appeal for want of
jurisdiction.

Judgment entered September 3, 2014

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