                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00174-CV


EDWIN H. WITHERSPOON                                                APPELLANT

                                         V.

STATE OF TEXAS D/B/A TARRANT                                          APPELLEE
COUNTY, TEXAS


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          FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant Edwin H. Witherspoon attempts to appeal the trial court’s order

dismissing his bill of review. Because the bill of review Witherspoon filed in the




      1
       See Tex. R. App. P. 47.4.
trial court seeks to set aside his underlying felony conviction and thirty-year

sentence, we do not have jurisdiction over this appeal.2

                                 II. Background

      On October 5, 2009, Witherspoon—an inmate in the Texas Department of

Criminal Justice proceeding pro se—filed in the trial court a document titled,

―Action at Equity for Bill of Review Seeking Remedy/Relief from Judgments; or in

the alternative, Action Ex Delicto[3] Seeking Cancellation of Judgments,

Supercedeas, and Unconditional Release.‖ Witherspoon alleged in that pleading

that he was arrested, detained, and indicted; that he pleaded guilty; and that

judgment was entered against him by the 213th Judicial District Court of Tarrant

County, Texas. Witherspoon received a thirty-year sentence.

      Witherspoon further alleged that the judgment against him is void because,

among other things, there was no meeting of the minds.            According to

Witherspoon, because bonds for criminal defendants are in actuality commercial

transactions, the commercial nature of the transaction should have been

disclosed to him, and the nondisclosure rendered his judgment void.       In his

prayer, Witherspoon pleaded that ―he is a victim of EXTRINSIC FRAUD, and that


      2
       Also pending before the court is Witherspoon’s ―Request for Extension of
Time and Access to Court with Order.‖ Given our determination that we do not
have jurisdiction over Witherspoon’s attempted appeal, we dismiss the motion as
moot.
      3
       ―Ex delicto‖ means ―arising from a crime or tort.‖ Black’s Law Dictionary
649 (9th ed. 2009).


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the judgment procured in cause number: C-213-006486-0781056-A [is] thereby

VOID.‖

      On May 10, 2010, the trial court dismissed Witherspoon’s lawsuit, finding

that no defendant had been served and that Witherspoon’s claims were frivolous.

See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2), (b) (West 2002) (granting

trial courts authority to sua sponte dismiss inmate lawsuits as frivolous if they

meet the statutory standards). Witherspoon filed a notice of appeal after filing a

motion for rehearing and requesting and receiving findings of fact and

conclusions of law.

                                 III. Discussion

      Code of criminal procedure article 11.07 sets forth the procedure for

applicants seeking relief from felony judgments imposing penalties other than

death, and it states in relevant part: ―After conviction the procedure outlined in

this Act shall be exclusive and any other proceeding shall be void and of no force

and effect in discharging the prisoner.‖ Tex. Code Crim. Proc. Ann. art. 11.07 §§

1, 5 (West Supp. 2011).        In Ex Parte Mendenhall, Mendenhall filed an

―Application for Common Law Writ of Audita Querela,‖ which the court defined as

a ―writ available to a judgment debtor who seeks a rehearing of a matter on

grounds of newly discovered evidence or newly existing legal defenses.‖ 209

S.W.3d 260, 260–61 & n.1 (Tex. App.—Waco 2006, no pet.) (quoting Black’s

Law Dictionary 141 (8th ed. 2004)).      Mendenhall alleged that the judgment

against him violated the separation of powers provision of the Texas constitution


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and that he had been denied due process and due course of law, and the court

wrote that ―Mendhenhall seeks by writ of audita querela to have his felony

conviction set aside.‖ Id. at 261. However, the court also held that ―an article

11.07 writ of habeas corpus is the exclusive means to accomplish this objective

in a collateral proceeding.‖ Id. Thus, the court dismissed Mendenhall’s appeal

for lack of jurisdiction. Id.

       In Collins v. State, Collins filed a bill of review and contended that his 1997

driving while intoxicated conviction should have been set aside on double

jeopardy grounds. See 257 S.W.3d 816, 816 (Tex. App.—Texarkana 2008, no

pet.). Dismissing Collins’s appeal for lack of jurisdiction, the court noted the

unavailability of a bill of review in criminal cases and wrote that the ―Legislature

has limited [the] available collateral post-conviction remedies to that of habeas

corpus‖ pursuant to article 11.07. Id. at 817 (citing Ex parte Williams, 165 Tex.

Crim. 130, 303 S.W.2d 403, 405 (1957), overruled on other grounds by Ex parte

Taylor, 522 S.W.2d 479, 480 n.1 (Tex. Crim. App. 1975)).

       It is clear from Witherspoon’s bill of review pleading that, like the

defendants in Mendenhall and Collins, he wishes to have his underlying criminal

conviction and thirty-year sentence set aside. But Witherspoon may seek that

post-conviction relief only pursuant to article 11.07. See Tex. Code Crim. Proc.

Ann. art. 11.07 §§ 1, 5; Collins, 257 S.W.3d at 817; Mendenhall, 209 S.W.3d at

260–61; cf. Tex. Code Crim. Proc. Ann. art. 11.072 (West 2005) (setting forth

procedure for attempting to set aside felony or misdemeanor conviction involving


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community supervision).    This court is therefore without jurisdiction to hear

Witherspoon’s attempted appeal. Collins, 257 S.W.3d at 817; Mendenhall, 209

S.W.3d at 260–61.

                               IV. Conclusion

       Because code of criminal procedure article 11.07 provides Witherspoon’s

exclusive post-conviction procedure for setting aside his felony conviction and

sentence, we dismiss this appeal for lack of jurisdiction. See Tex. R. App. P.

43.2(f).


                                                PER CURIAM

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: November 10, 2011




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