Opinion
No. 10-16-00020-CR
01-28-2016
HERMAN LEE KINDRED, Appellant v. THE STATE OF TEXAS, Appellee
From the 18th District Court Johnson County, Texas
Trial Court No. F43788
MEMORANDUM OPINION
On January 22, 2016, the Clerk of this Court filed a notice of appeal from Herman Lee Kindred referencing trial court number F43788 in which Kindred was convicted of Theft which was enhanced to a second degree felony. See TEX. PENAL CODE ANN. §§ 31.03(a), (e)(3), (4); 12.42(a)(2) (West 2011). The conviction was appealed, and this Court affirmed the trial court's judgment of conviction. Kindred v. State, No. 10-10-00380-CR, 2011 Tex. App. LEXIS 7672 (Tex. App.-Waco Sept. 21, 2011, no pet.) (not designated for publication). The conviction in F43788 is final. Our mandate issued December 28, 2011.
Kindred contends in this new notice of appeal that his sentence is illegal. Based on the content of the notice of appeal, Kindred seeks post-conviction relief from his final felony conviction; relief that could only be obtained pursuant to a petition for writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2005). We have no jurisdiction to grant post-conviction relief in an attack on a final felony conviction. See id. art 11.05; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) ("[The Court of Criminal Appeals is] the only court with jurisdiction in final post-conviction felony proceedings.").
Accordingly, we dismiss this appeal for lack of jurisdiction.
A motion for rehearing may be filed within 15 days after the judgment of this Court is rendered. See TEX. R. APP. P. 49.1. If the appellant desires to have the decision of this Court reviewed by filing a petition for discretionary review, that petition must be filed with the Court of Criminal Appeals within 30 days after either the day this Court's judgment was rendered or the day the last timely motion for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2(a). --------
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Appeal dismissed
Opinion delivered and filed January 28, 2016
Do not publish
[CR25]