Opinion
No. 05-15-01045-CR No. 05-15-01046-CR
09-03-2015
SENRICK SHERN WILKERSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause Nos. F10-01183-J, F10-01184-J
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Myers and Brown
Opinion by Chief Justice Wright
Senrick Wilkerson was convicted of sexual performance by a child and sexual assault of a child. The convictions were affirmed on direct appeal, as were the appeals from the denial of his motion for post-conviction DNA testing related to the convictions. Wilkerson v. State, Nos. 05-11-00061-00062-CR, 2012 WL 2877623 (Tex. App.—Dallas July 16, 2012, pet. ref'd) (convictions); Wilkerson v. State, Nos. 05-14-00007-00008-CR, 2015 WL 139387 2015 WL 139387 (Tex. App.—Dallas Jan. 12, 2015, no pet.) (DNA). The Court now has before it appellant's notice of appeal from the trial court's presumed denial of his motion for petition for bill of review. 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 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 trial court has not issued an order ruling on appellant's motion for a bill of review. Moreover, regardless of what the document is named, the substance of the document is a collateral attack on the judgments of conviction. Therefore, even had the trial court issued a written order denying the motion, the order would not be appealable to this Court. As the Court has recently stated in appeals brought by appellant collaterally attacking his convictions, see Wilkerson v. State, Nos. 05-15-00978-00980-CR (Tex. App.—Dallas Aug. 18, 2015, no pet. h.), the post-conviction habeas corpus procedure set out in the Texas Code of Criminal Procedure is the sole procedure by which to collaterally attack final felony convictions. See TEX. CODE CRIM. P. ANN. arts. 11.05, 11.07 (West 2015). That avenue of attack does not change simply because appellant changes the title of the document he files. Further, this Court does not have jurisdiction over such post-conviction habeas corpus proceedings. See id. art. 11.05.
Accordingly, we dismiss the appeals for want of jurisdiction.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47
151045F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F10-01183-J.
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
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F10-01184-J.
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.