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Moses v. State

Court of Appeals of Texas, Sixth District, Texarkana
Sep 25, 2007
No. 06-07-00141-CR (Tex. App. Sep. 25, 2007)

Opinion

No. 06-07-00141-CR

Date Submitted: September 24, 2007.

Date Decided: September 25, 2007. DO NOT PUBLISH.

On Appeal from the County Court Camp County, Texas, Trial Court No. 7991.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.


MEMORANDUM OPINION


Michial L. Moses should be given credit for being resourceful, at least. Moses has filed a notice of appeal in connection with his attempt to obtain a "writ of error coram nobis" in the county court of Camp County, Texas. That writ is an English common-law remedy originally directed to the King's Bench and is now defined as a writ of error directed to a court for review of its own judgment and predicated on alleged errors of fact. Black's Law Dictionary 362 (8th ed. 2006). There are two problems with Moses' appeal: (1) there is no trial court order from which he attempts this appeal, and (2) a writ of error coram nobis is not available here, even from a final appealable order. We dismiss this appeal for want of jurisdiction. Even if a writ of error coram nobis was available to Moses — and it was not available — we see no indication that the county court has ruled on Moses' request. We have jurisdiction only over appeals from certain types of orders and final judgments. The right of appeal in a criminal case is a substantive right determined solely within the province of the Legislature. Lyon v. State, 872 S.W.2d 732, 734 (Tex.Crim.App. 1994). "A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed." Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006). Generally, a criminal defendant may appeal only from a final judgment. See State v. Sellers, 790 S.W.2d 316, 321 n. 4 (Tex.Crim.App. 1990); Ahmad v. State, 158 S.W.3d 525, 527 (Tex.App.-Fort Worth 2004, pet. ref'd). The clerk's record reveals that no final order or judgment exists in this case. Thus, there is no ruling to appeal, and we have no jurisdiction over this proceeding. We dismiss the appeal for want of jurisdiction.

In Texas, a habeas proceeding is the exclusive means to set aside a conviction in a collateral proceeding; neither the writ of error coram nobis nor the writ of audita querela is available in Texas to accomplish this purpose. See McBride v. State, 114 S.W.3d 556, 557 (Tex.App.-Austin 2002, no pet.); see also Ex parte McCune, 156 Tex.Crim. 213, 246 S.W.2d 171, 172 (1952) (writ of error coram nobis not available in Texas as post-conviction remedy); Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex.App.-Waco 2006, no pet.).
A defendant convicted of a misdemeanor offense may seek habeas relief in the county court of the county where the misdemeanor was charged to have been committed. See Tex. Code Crim. Proc. Ann. arts. 11.09, 11.21, 11.22 (Vernon 2005). We acknowledge that an examination of the language of Article 11.09 reveals that it is permissive, not mandatory. The Texas Court of Criminal Appeals has held that it was advisory in nature and that it was thus not sufficient to deprive the district court of its jurisdiction to hear post-conviction habeas corpus petitions in cases involving misdemeanors. State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 434 (Tex.Crim.App. 1987); Ex parte Johnson, 561 S.W.2d 841, 842 (Tex.Crim.App. 1978); Ex parte Tarango, 116 S.W.3d 201, 202 (Tex.App.-El Paso 2003, no pet.); In re Maxwell, 970 S.W.2d 70, 74 (Tex.App.-Houston [14th Dist.] 1998, no pet.). An individual may seek to attack the validity of a conviction by way of habeas corpus if he or she is either (i) confined or restrained as a result of a misdemeanor charge or conviction or (ii) is no longer confined, but is subject to collateral legal consequences resulting from the conviction. Ex parte Crosley, 548 S.W.2d 409, 409-10 (Tex.Crim.App. 1977); Ex parte Rinkevich, 222 S.W.3d 900, 902 (Tex.App.-Dallas 2007, no pet.); see Ex parte McCullough, 966 S.W.2d 529, 531-32 (Tex.Crim.App. 1998).


Summaries of

Moses v. State

Court of Appeals of Texas, Sixth District, Texarkana
Sep 25, 2007
No. 06-07-00141-CR (Tex. App. Sep. 25, 2007)
Case details for

Moses v. State

Case Details

Full title:MICHIAL L. MOSES, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Sixth District, Texarkana

Date published: Sep 25, 2007

Citations

No. 06-07-00141-CR (Tex. App. Sep. 25, 2007)