Opinion
No. 04-17-00040-CR
03-22-2017
Carlton WOOD, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR3690
Honorable Sid L. Harle, Judge Presiding PER CURIAM Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice DISMISSED FOR WANT OF JURISDICTION
Appellant filed a number of pro se motions, including what we have construed as a notice of appeal, on January 25, 2017. After reviewing the motions, we conclude we lack jurisdiction and dismiss this appeal.
Appellant was convicted after a bench trial of evading arrest with a vehicle. On March 28, 2014, in trial court number 2013-CR-3690, appellant filed a notice of appeal, challenging the sufficiency of the evidence to support an enhanced sentence he had received. On appeal, we agreed with appellant and reversed the portion of the judgment assessing punishment and remanded the cause for a new punishment hearing. See Wood v. State, 453 S.W.3d 488, 492 (Tex. App.—San Antonio 2015, pet. granted), rev'd 486 S.W.3d 583 (Tex. Crim. App. 2016). On April 6, 2016, the Texas Court of Criminal Appeals reversed our judgment, holding the evidence was legally sufficient to support the enhancement paragraph of the indictment. Wood, 486 S.W.3d at 590. The Court of Criminal Appeals issued its mandate on May 2, 2016.
Despite the foregoing, in the same trial court number, appellant filed a number of pro se motions, including what we have construed as a notice of appeal. In his notice of appeal, appellant does not reference a new order or judgment he is appealing; rather, he references the former trial court number and appeal number - trial court number 2013-CR-3690 and Cause No. 04-14-00224-CR. It thus appeared he was either: (1) appealing the judgment rendered by the Court of Criminal Appeals, which we do not have authority to review, or (2) attempting a second appeal from the same judgment in the underlying trial court number 2013-CR-3690. See Tex. Const. art. V, § 5 (court of criminal appeals shall have final appellate jurisdiction in all criminal cases of whatever grade); TEX. R. APP. P. 19.1 (appellate court cannot vacate or modify judgment after plenary power has expired); Minnfee v. Proyor, No. 01-12-00943-CV, 2013 WL 709254, at *1 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (mem. op.) ("Appellant is not entitled to a second appeal from the trial court's judgment dismissing the case."). Accordingly, it appeared from the record before us that we lack jurisdiction over this attempted appeal. See id.
We therefore ordered appellant to file a written response in this court showing cause why we should not dismiss this appeal for want of jurisdiction. We advised appellant that if he failed to satisfactorily respond, the appeal would be dismissed. Appellant timely filed a response, stating he is challenging the sufficiency of the indictment supporting the judgment in the underlying trial court number 2013-CR-3690. However, there is no new conviction or appealable order from which a new notice of appeal may be filed. Because appellant is attempting a second appeal from a judgment from which he has already appealed and in which mandate has issued, we lack jurisdiction over this appeal. See TEX. R. APP. P. 19.1, 26.2 (requiring notice of appeal to be filed within thirty days of appealable order or 90 days if motion for new trial filed). Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM Do Not Publish