                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-18-00092-CV

                           IN THE INTEREST OF I.D.C.,
                                   A CHILD,



                             From the 66th District Court
                                 Hill County, Texas
                              Trial Court No. CV315-17


                            MEMORANDUM OPINION


       Appellant C.C., acting pro se, appeals from the trial court’s final order terminating

his parental rights to his child, I.D.C., following a jury trial. The jury found that C.C. had

knowingly engaged in criminal conduct that resulted in his confinement or imprisonment

and inability to care for I.D.C. for not less than two years from the date of the filing of the

petition and that termination was in I.D.C.’s best interest. See TEX. FAM. CODE ANN. §§

161.001(b)(1)(Q) and (b)(2) (West Supp. 2017). We will affirm.

                                        Background

       This is the second termination action filed regarding C.C.’s parental relationship

with I.D.C. The record before us reflects that in Cause Number 50,144, also filed in Hill
County, the State removed I.D.C. and her half-brother, B.W., from the custody of their

mother, D.G., and moved to terminate her parental rights. At the time I.D.C. was

removed, C.C. was serving a four-year sentence arising out of his convictions for DWI

and criminal mischief in Cause Numbers 11-13-0367-CR and 11-13-0368-CR. The trial

court appointed counsel to represent C.C. during the termination proceeding. D.G.

voluntarily relinquished her parental rights, and the children were placed in the custody

of C.S., a non-relative who is the petitioner in the present case. C.C. entered into a Rule

11 agreement by which he would retain his parental rights to I.D.C. and would resume

visitation after he was released from prison and after completing a parenting class and

undergoing drug testing. The trial court signed a final order on December 9, 2013 that

terminated D.G.’s parental rights to I.D.C., appointed C.S. as sole managing conservator,

and appointed C.C. as possessory conservator.          The final order incorporated the

provisions of the Rule 11 agreement. No appeal was taken from the final order.

        After C.C. was released from incarceration, he was convicted for assault family

violence, enhanced by a previous conviction for assault family violence, in Cause

Number B-44,709-A.      C.C. was sentenced to twelve years’ incarceration. C.S. then

initiated the present suit to terminate C.C.’s parental rights. C.C. was still incarcerated

when the present matter went to trial.

                                           Issues

        We have construed the document filed by C.C. entitled “First Response to the

Court’s July 25, 2018 Order” as his brief. C.C. first argues that we do not have jurisdiction

to consider his appeal. Appellate courts have jurisdiction over final judgments and

In re I.D.C.                                                                           Page 2
interlocutory orders made appealable by statute. See Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001). Our jurisdiction is triggered by the timely filing of a sufficient notice

of appeal. Summers v. State, 555 S.W.3d 844, 849 (Tex. App.— Waco 2018, no pet.). As

C.C. appeals from a final judgment with a sufficient notice of appeal, we have jurisdiction

to consider this matter.

        The Texas Constitution provides district courts “exclusive, appellate, and original

jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,

appellate, or original jurisdiction may be conferred by this Constitution or other law on

some other court, tribunal, or administrative body.” TEX. CONST. ART. V, § 8 (West 2007).

The district court’s jurisdiction includes those cases that would affect the parent-child

relationship. See TEX. FAM. CODE ANN. § 155.001 (West Supp. 2017); see also Armstrong v.

Reiter, 628 S.W.2d 439, 440 (Tex. 1982). The trial court had jurisdiction to consider the

termination of C.C.’s parental rights.

        C.C. next claims that his underlying criminal conviction for assault family violence

in Cause Number B-44,709-A should not have been used to support the termination of

his rights in the present termination because it was not final. In this context, a conviction

is final if it has been affirmed by an appellate court and the mandate has been issued. See

Lundgren v. State, 434 S.W.3d 594, 598 (Tex. Crim. App. 2014); see also Johnson v. State, 784

S.W.2d 413, 414 (Tex. Crim. App. 1990). C.C.’s conviction was affirmed, and his petition

for writ of discretionary review was denied. See Cobos v. State, No. 11-15-00210-CR, 2017

WL 253663 (Tex. App.—Eastland Jan. 20, 2017, pet. ref’d) (mem. op., not designated for


In re I.D.C.                                                                             Page 3
publication). Mandate was issued by the Eleventh Court of Appeals on June 7, 2017. The

assault family violence conviction was final, therefore, prior to trial beginning in this case

on February 20, 2018.

        On January 1, 2018, C.C. filed an application for writ of habeas corpus in the Court

of Criminal Appeals, once again challenging his conviction in Cause Number B-44,709-

A. See In re Cobos, No. WR-78,605-03 (Tex. Crim. App. 2018). His application was denied

on March 14, 2018 without written order. Id. An application for a writ of habeas corpus

is not available until after a conviction has become final. See Ex parte Brown, 662 S.W.2d

3, 4 (Tex. Crim. App. 1983); see also TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015).

Such an application, however, does not revive a final conviction. See Ex parte Webb, 270

S.W.3d 108, 111 (Tex. Crim. App. 2008) (granting PDR and reinstating appeal process

does not render court of appeal’s mandate ineffective). Therefore, C.C.’s argument is

without merit.

        The rest of C.C.’s arguments are based upon alleged irregularities in Cause

Number 50,144, the prior termination case. C.C. first asserts that he did not receive a

copy of the trial court’s final order, thereby depriving him of his right to appeal and

rendering the judgment invalid. However, a judgment that is defective because of a

failure to follow proper procedure is voidable rather than void. See State ex rel. Latty v.

Owens, 907 S.W.2d 484, 485-86 (Tex. 1995); see also Office of the Atty. Gen. v. Phillips, No. 01-

05-00973-CV, 2007 WL 1559804, at *3 (Tex. App.—Houston [1st Dist.] May 31, 2007, no

pet.) (mem. op.) (lack of notice does not render a judgment void.). C.C.’s remedy, if he

In re I.D.C.                                                                              Page 4
was unable to file a timely notice of appeal, was to file a motion for new trial or a bill of

review with the trial court rather than attempt to contest it in a collateral proceeding. See

Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010). As C.C. did neither, we are

unable to review his claims in regard to Cause Number 50, 144.

        Even if C.C. could effectively challenge the final order in Cause Number 50,144,

the documents he has placed in the record do not support his claims. Although not

admitted, C.C. introduced at trial in this case a document filed in Cause Number 50,144

on October 17, 2013 that he identifies as his notice of appeal. That document was filed

almost two months prior to entry of the final order. A notice of appeal is premature if it

is filed before the judgment or final order is signed. See In re Norris, 371 S.W.3d 546, 552

(Tex. App.—Austin 2012, no pet.). Under Rule 27.1 of the Rules of Appellate Procedure,

“a prematurely filed notice of appeal is effective and deemed filed on the day of, but after,

the event that begins the period for perfecting the appeal.” However, C.C.’s “notice of

appeal” does not challenge the trial court’s final order of termination but rather the Rule

11 agreement. C.C. specifically states in the “notice of appeal” that “Defendant [sic] is

requesting an appeal/modification of the Rule 11 agreement of the Texas Family Code,

and supplement thereto filed on the 30th day of September, 2013 in Hill County, Texas in

cause # 051440.” As C.C.’s “notice of appeal” does not address the validity of the final

order of termination, it cannot be construed as a premature notice of appeal. C.C. also

fails to present anything to indicate that he requested leave to pursue an interlocutory

appeal or that an interlocutory appeal is otherwise permissible in relation to the Rule 11

agreement.

In re I.D.C.                                                                           Page 5
        To the extent C.C. raises additional issues, they are also without merit and are

overruled.

        Having overruled C.C.’s issues, we affirm the trial court’s judgment.

        C.C. has also filed a document entitled “Declaration for Entry of Default.” As we

have resolved all issues, his request for additional relief is denied as moot.




                                                         REX D. DAVIS
                                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed November 28, 2018
[CV06]




In re I.D.C.                                                                           Page 6
