in the Interest of Alexis Megan Ray, a Child ( 2006 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00047-CV ______________________________





IN THE INTEREST OF ALEXIS MEGAN RAY, A MINOR CHILD

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On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 63264

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Leah Marie Rolen, appellant, has filed with this Court a motion to dismiss the pending appeal in this matter. She represents to this Court that the parties have reached a full and final settlement. In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot.

We grant the motion and dismiss this appeal.

Donald R. Ross

Justice

Date Submitted: October 24, 2006

Date Decided: October 25, 2006

, 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 ⁽¹⁾--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.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 24, 2007

Date Decided: September 25, 2007

Do Not Publish

1. 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).