Opinion
No. 05-15-01544-CR No. 05-15-01545-CR
01-07-2016
DONALD GENE BLANTON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court Kaufman County, Texas
Trial Court Cause Nos. 23078-86, 23592-86
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Brown
Opinion by Chief Justice Wright
Donald Gene Blanton was convicted of possession of cocaine in an amount less than one gram and tampering with evidence. He was sentenced to twenty years' imprisonment on the cocaine possession offense and life imprisonment on the tampering with evidence offense. This Court affirmed his convictions on direct appeal. Blanton v. State, Nos. 05-05-01060-CR, 05-05-01061-CR, 2015 WL 2036615 (Tex. App.—Dallas July 21, 2006, pet. ref'd).
The Court now has before it appellant's notice of appeal from a letter the trial court sent in response to Blanton's petition for writ of mandamus. In the petition for writ of mandamus, Blanton complained the trial court was not ruling on his "motion for state production indictment to the state's sworn affidavit evidence relied on to defendant's conviction defendant actually innocent." In that document, Blanton asked the trial court to order the State to submit a motion to the Texas Court of Criminal Appeals recommending that Blanton's convictions be immediately overturned. The trial court responded that it had taken no action on Blanton's motion because its plenary jurisdiction over the cases had expired. We conclude we lack jurisdiction over the appeals.
This information is taken from this Court's opinion in the mandamus cases. In re Blanton, Nos. 05-15-01412-CV, 05-15-01413-CV, 2015 WL 9257033 (Tex. App.—Dallas Dec. 11, 2015, orig. proceeding) (mem. op.). The Court dismissed the petition for writ of mandamus in each case. A copy of the trial court's letter was filed with the notice of appeal. --------
"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 standard to determine whether an appellate court has jurisdiction to hear and determine a case 'is not whether the appeal is precluded by law, but whether the appeal is authorized by law.'" Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). 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.).
The relief Blanton sought from the trial court, in substance, constituted a post-conviction collateral attack on his convictions. The sole method by which a collateral attack may be brought on a final felony conviction is by application for writ of habeas corpus under the procedure set out in article 11.07 of the Texas Code of Criminal Proceeding. See Ex parte Adams, 768 S.W.2d 281, 287 (Tex. Crim. App. 1989); see also TEX. CODE CRIM. P. ANN. art. 11.07 (West 2015). This Court does not have jurisdiction over post-conviction habeas corpus proceedings. See TEX. CODE CRIM. P. ANN. art. 11.05 (West 2015) (by whom writ may be granted).
We dismiss the appeals for want of jurisdiction. Do Not Publish
TEX. R. APP. P. 47
151544F.U05
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
JUDGMENT
On Appeal from the 86th Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 23078-86.
Opinion delivered by Chief Justice Wright, Justices Myers and Brown participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered January 7, 2016.
JUDGMENT
On Appeal from the 86th Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 23592-86.
Opinion delivered by Chief Justice Wright, Justices Myers and Brown participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered January 7, 2016.