David Allen Russell v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00464-CR
NO. 02-15-00465-CR
DAVID ALLEN RUSSELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 0750351D, 0747847D
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MEMORANDUM OPINION1
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These appeals arise out of Appellant David Allen Russell’s 2010
convictions for indecency with a child by contact. We previously affirmed those
convictions on direct appeal.2 The convictions became final when our mandate
1
See Tex. R. App. P. 47.4.
2
See Russell v. State, 341 S.W.3d 526, 528 (Tex. App.—Fort Worth 2011,
no pet.).
issued on June 16, 2011. See Ex parte Webb, 270 S.W.3d 108, 111 (Tex. Crim.
App. 2008) (“It has long been the rule that a conviction from which an appeal has
been taken is final . . . when the clerk of the court of appeals issues that court’s
mandate.”).
On September 17, 2015, Russell filed—in both trial court cases—a “Motion
to Reform Judgment,” asking that the trial court reduce his sentences due to
alleged ineffective assistance of counsel during the hearing on the State’s motion
to revoke his community supervision. The motion also complains that Russell’s
prior application for writ of habeas corpus was erroneously denied by the court of
criminal appeals and requests the trial court set a hearing on the motion. The
motion remains pending in both cases. Russell filed notices of appeal, stating
that “it has been more than sixty (60) days since the motion to reform the
sentence[s] . . . and [it] should be ruled upon . . . .”
We generally do not have jurisdiction over proceedings related to a
collateral attack of a final felony conviction. See, e.g., Olivo v. State, 918 S.W.2d
519, 525 n.8 (Tex. Crim. App. 1996) (explaining that the exclusive post-
conviction remedy with regard to final felony convictions is through a writ of
habeas corpus); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.
Crim. App. 1991) (orig. proceeding) (holding that the court of criminal appeals is
“the only court with jurisdiction in final post-conviction felony proceedings”). We
also lack jurisdiction when the trial court has not entered any appealable orders.
See McKown v. State, 915 S.W.2d 160, 160 (Tex. App.—Fort Worth 1996, no
2
pet.) (“Because we find that this appeal does not concern an appealable order,
we dismiss this appeal for want of jurisdiction.”).
On December 23, 2015, we sent a letter to Russell to inform him that we
received his notices of appeal and that we were concerned that we lacked
jurisdiction over the appeals because the trial court had not entered any
appealable orders. We informed Russell that we would dismiss the appeals for
want of jurisdiction unless he or any party desiring to continue the appeals filed a
response showing grounds for continuing them within ten days. Although Russell
filed a response, it does not raise grounds for continuing these appeals.
The trial court has not entered any appealable order, and the court of
criminal appeals—not the trial court or us—has exclusive jurisdiction over
Russell’s post-conviction felony challenge. See Olivo, 918 S.W.2d at 525 n.8;
Ater, 802 S.W.2d at 243; McKown, 915 S.W.2d at 160.3 Accordingly, these
appeals are dismissed for want of jurisdiction. See Tex. R. App. P. 43.2(f).
PER CURIAM
PANEL: WALKER, MEIER, and GABRIEL, JJ.
3
Alternatively, to the extent Russell’s notices of appeal could be liberally
construed as petitions for writs of mandamus, he has failed to demonstrate that
the trial court has jurisdiction to rule on his motion. See In re Belton, No. 12-13-
00293-CR, 2014 WL 2003108, at *1 (Tex. App.—Tyler May 14, 2014, no pet.)
(orig. proceeding) (mem. op., not designated for publication) (“Unless the trial
court has jurisdiction, mandamus is not available to compel the court to rule on a
motion that is filed after the judgment becomes final.”).
3
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 25, 2016
4