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
-4-
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
-5-
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Combined Opinion