Opinion
NO. 01-15-00940-CR
01-05-2016
HERMELINDO IBARRA PENALOZA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas
Trial Court Case No. 1414763
MEMORANDUM OPINION
On July 17, 2014, pursuant to a plea agreement, appellant Hermelindo Ibarra Penaloza pleaded guilty to possessing over 2,000 pounds of marijuana and was sentenced to ten years' imprisonment. The judgment was not appealed and subsequently became final. On September 17, 2015, Penaloza, acting pro se, filed a post-conviction motion with the trial court styled "Defendant's Motion Requesting A Due Process Review of Reducing His Illegal Sentence Tex. Const. Art. 1, §29," in which Penaloza challenged the merits of his conviction and requested that the trial court reduce his sentence from ten to five years' imprisonment. The trial court denied Penaloza's motion on September 22, 2015 and Penaloza filed a notice of appeal from the denial order. We dismiss the appeal for lack of jurisdiction.
Generally, we have jurisdiction over a criminal defendant's appeal only when it arises from a judgment of conviction; we do not have jurisdiction to review interlocutory orders or other orders unless that jurisdiction has been expressly granted by statute. See Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014); see also TEX. R. APP. P. 25.2(a)(2) (providing that a criminal defendant has the right to appeal a judgment of guilt or other appealable order). We do not generally have jurisdiction over proceedings related to a collateral attack of a final felony conviction. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 3, 5 (West Supp. 2015); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (Court of Criminal Appeals is "the only court with jurisdiction in final post-conviction felony proceedings."); see also Perry v. State, No. 01-12-01051-CR, 2012 WL 6213718, at *1 (Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op., not designated for publication) ("Article 11.07 provides the exclusive means to challenge a final felony conviction" and "[o]nly the Texas Court of Criminal Appeals has jurisdiction over matters related to post-conviction relief from a final felony conviction.").
We lack jurisdiction over this attempted appeal because the order denying Penaloza's motion challenging his final felony conviction is neither a judgment of conviction nor is an appeal of that order to our Court authorized by statute. See Braden v. State, No. 02-15-00226-CR, 2015 WL 7008370, at *1 (Tex. App.—Fort Worth Nov. 12, 2015, no pet. h) (mem. op., not designated for publication) ("We are aware of no law that grants us jurisdiction over an appeal from an order denying a postconviction motion that challenges the merits of the conviction."); Talkington v. State, No. 09-15-00320-CR, 2015 WL 5604471, at *1 (Tex. App.—Beaumont Sept. 23, 2015, no pet.) (mem. op., not designated for publication) ("[Appellant] has failed to show any authority granting an intermediate appellate court jurisdiction to consider an appeal from the denial of his post-conviction motion."); Carter v. State, No. 07-14-00296-CR, 2015 WL 1612096, at *2 (Tex. App.—Amarillo Apr. 10, 2015, no pet.) (mem. op., not designated for publication) ("[W]e have found no . . . authority supporting our jurisdiction to entertain an appeal from [a] post-conviction motion to set aside [a] conviction.").
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.
PER CURIAM Panel consists of Justices Jennings, Keyes, and Bland. Do not publish. TEX. R. APP. P. 47.2(b).