                                   ISZZ-fY
               CAUSE      NO.       PD-1522-14




                              IN    THE

                                                                    n RECEIVED SN
       TEXAS COURT OF CRIMINAL APPEALS                              COURT OF CRIMINAL APPEA! B
                      AUSTIN, TEXAS                                        JAN 15 2015

       .                                                            Abe! AcoR*a. Gleet

           JOHN    WESLEY       PATTERSON, III,
                                      Petitioner,
                                                                            FILED IN
                                                               COURT OF CRIMINAL APPEALS
                                   v.

                                                                           JAN 2 31: j
                  THE    STATE          OF   TEXAS
                                                                         Abel Acosta, Clerk




 ON   PETITION     FOR    DISCRETIONARY              REVIEW     FROM

THE   FIFTH   SUPREME      JUDICIAL           COURT    OF   APPEALS


                  DALLAS      COUNTY,         TEXAS

              CAUSE     NO.    05-14-0109B-CR




       PETITION     FOR       DISCRETIONARY           REVIEW




                                              DQHN WESLEY PATTERSON,               III 1375031
                                              Petitioner pro se
                                               Eastham      Unit
                                              2665    Pfiison      Rd.    #1
                                              L'ovelady, Texas 75851
                                    TABLlE OF CONTENTS



INDEX OF AUTHORITIES                                           Li

STATEMENT REGARDING ORAL ARGUMENT                              ii

STATEMENT OF THE CASE                                          gj

STATEMENT OF PROCEDURAL HISTORY                                i^
GROUNDS FOR REVIEW                                              3

ARGUMENTS   AND   AUTHORITIES                            iii    3

PRAYER                                                          9

DECLARATION AND CERTIFICATE OF          SERVICE                 9
                                   INDEX   OF   AUTHORITIES

CASE                                                                         PAGE

Exxparte Augustas, 639 S.W.2d 481 (Tex.Crim.App.19B2                      >-. 5

Ex parte. Benfield, 697 S.W.2d 420 (Tex.Crim.App.19B6)                       5

Casias v. State, 503 S.W.2d 262, 263 (Tex.Crim.App.1973).                    2

Davis v. State, 968 S.W.2d 368, .372 (Tex.Crim.App.199B)                     6

Diremiggio v. State, 637 S.W.2d 926 (Tex.Crim.App.19B2)                      ii

Ellis v. State, (Cr.App.38) 134 Tex.Crim. (115 S.W.2d 660).                  3

Fletcher yv State, 214 S.W.3d 57 (Tex.Crim.App.2007)                         7

Hickman v. State, 548 5.W.2d 736 (Tex.Crim.App.1977)                         5

Clones v. State, 711 S.W.2d 634, 636 (Tex.Crim.App.1986).......?,..          7

Gordon v. State, 256 S.W.3d 286, 292 (Tex.Crim.App.2008)                     7

Gordon v. State, 365 S.W.3d 671, 673 (Tex.Crim.App.2001)                     3

Menefee v. State, 175 S.W.3d 500, 506 (Tex.App.-Beaumont2005)                ii

Ex parte Murchinson, 560 S.W.2d 654, 656 (Tex.Crim.App.197B)                 ii
Nolan v. State, 102 S.W.3 231, 243 (Tex.App,-Houston [14th Dist.]1903)   ... 5

Ex paete GJuidrke, 710 S.W.2d (Tex.Crim.App. 1986)                           5
Rich v. State, 194 S.W.3d 508, 513 (Tex.Crim.App.2006)                       7

Scott v. State, 55 S.W.3d'. 593, 596 (Tex.Crim.App.2006)                     5

Skillerno v. State, 890 S.W.2d 849 (Tex.App.-Aiistinl994)                    3

Spiers v. State,        552 S.W.2d (Tex.Crim.App.1977)                       4

Ex parte "swell, 742 S.W.2d 393 (Tex.Crim.App.)                              5
Thomas v. Longv ,207 S.W.3d 334, 340 (Tex.2006)                              7
Tomlin v. State,., 722 S.W.2d 702, 705 (Tex.Crim.App.19B7)                   7

CONSTITUTIONAL1    ">     ••

U.S. Constitution Amendments VI & XIX...                                      ^
Texas Constitution, Aet. I, §10                 :\                            ^-5
                          >
                                                                              7
Texas Constitution, ,Arjt. V, §7

                                                i.
                           INDEX OF AUTHORITIES (cont.)

RULES AND ARTICALiS

FEDERAL RULES OF EVIDENCE, Rule 201                           6

TEXAS CODE OF CRIMINAL PROCEDURE, ART. 42.03(1) (a)           1

TEXAS RULES OF APPELLATE PROCEDURE, RULE 6B                   1

TEXAS RULES OF APPELLATE PROCEDURE, RULE 60.3                 1

TEXAS RULES OF APPELLATE PROCEDURE, RULE 25.2(a)(2)...        7

TEXAS RULES OF APPELLATE PROCEDURE, RULE 47.17...             7

TEXAS CODE OF CRIMINAL PROCEDURE, ART. 42.03(l)$a)            1

OTHER


TEXAS CIVIL PROCEDURE AND REMEDIES CODE, §132.001 et. seg..   9




                                      i(a)
                      STATEMENT REGARDING      ORAL ARGUMENT

      The Petitioner requests oral zrgument and appointmenttof counsel. This case

requires reexamination of Diremggio v. State, 637 S,W,2d 926 (Tex^Crim.App. 1982),
Ex parte Langly, 833 S.W.2d 141, 143 (Tex.Grim.App; 1992), Exxpsrte Murchison,
560 S.W.2d 654, 656 '(Tex.Crim.App. 1978), and Menefee y.yState, 175 S.W.3d 500,

506 (Tex.App.-Beaumont 2005, no pet.), which created the distinction of the lam

on prior enhancements before 1997.   Becailise this case reqires inquiry into multiple

aspects of the cases herein, from preservation to application, and the latter fact-

intensive, oral argument will be helpful to the Court.




      \
          !




              \



                  \




                                        11.
*



     TO THE HONORABLE JUDGES OF SAID COURT:


            NOW COMES JOH WESLEY PATTERSON, III, Petitioner, pro se, and pursuant to

     Tex.R.App.Proc, Rule 6B, et. seq., presents this Petition for Discretionary

     Review and in support thereof, would show this Honorable Courtjias follows and

     respectfully asks the Court to grant the petition pursuant to Tex.R.App.Proc,

     Rule 60.3.


                                       STATEMENT OF THE CASE

           On March 24, 2006, Mr. Patterson was found guilty ain Cause No. 416-B2554-05.

     Mr. Patterson was sentenced on May 22, 2006, and received a life sentence due to

    a single enhancement anijionfi-ap^ffilalfctioithe 5th Court of Appeals and was affirmed,
     with a mandate showing the cause to be a conviction for a second degree felony

     not a first degree.

           Mr. Patterson was bench warranted to the trial court where a hearing was held
    before the court, with Mr. Patterson not represented by counsel and the court made

    no ruling.    However, the court later made a notation in the docket sheet that count
                        not
    7 was a finding of guiltybbutthe court made no mention of the 1st degree being
    reducedrtri'jaiiSnd degree.   The finding of an aquital was on Cause No. 416-82555-

     05.


    \_/-> At this time Mr- F'atterson has a continuence of a life sentence showing by
    the Texas Department of Criminal Justice-Classification Division.

             \                    STATEMENT OF BROCEDMRAb! BIESTIDRY
           OnnNdvember 29, 2007, the court of appeals affirmed as modified Mr. Patterson1

    conviction, a"nd remanded for modification on punishment.          Patterson v. State, Noa.,

    05-06-00876-CRR(Tex.App.-Dallas no pet), not designated for publication.           On

    December 13, 2007, per order of the court (trial), but without counsel and without
    pronouncement.    (See Tex.Cd.Crim.P., art 42.03(1)(a)(Vernon's Supp.2007)(providing
    that a felony sentenceVmust be pronounced in the defendant's presence).           See also
                              )
'*



     Casias v. State, 503 S.W.2d 262, 263 (Tex.Crim.App.1973) (Felony defendant may not

     waive the right to be present at sentencing).

          On October 31, 2013, Mr. Patterson's pro sePPetition for Writ of Mandamus

     was submitted to the 5th Court of Appeals.     The Court of Appeals denied the mandamus.

     On November 6, 2003, Mr. Patterson submitted his Motion for Nunc Pro Tunc Ruling

     to the trial court for bench warrant for proper sentencing hearing, due to the

     trial couit'sarefusal to issue a ruling on his motion.     An order was entered

     December 2, 2013, in Cause No. 05-13-01534-CV by the appellate court reference

     the petition for mandamus wherein the court granted in part and denied in part

     with opinion denying the mandamus.     On March 10, 2014, Mr. Patterson submitted

     his Motion to Vacate and Dismiss and set aside a prior void enhancement.     On July

     11, 2014, he filed his Motion Requesting Compliance with Texas Motion Ministerial

     Duties to the trial court.     On July 16, 2014, Mr. Patterson submitted his motion

     requesting compliance to Texas motion ministerial duties.

          On July 29, 2014, upon and order from the trial court denied Mr. Patterson's

     motion for nunc pro tunc ruling, motion to vacate and set aside a ruling and motion

     motion for compliance.   Oh August 23, 2014, Mr. Patterson submitted his notice

     of appeal to the court of appeals and acknowledgement of receipt by the court

     September 3, 2014.

          On September 19, 2014, Mr. Patterson submitted his Motion for Reconsideration

     and Rehearing to the 5th Court of Appeals.     On September 23, 2014, the appellate

     court granted the extension to October 6, 2014, along with the State's time to

     respond by October 20, 2014.     On October 14, 2014, by order of the appellate court,

     denied the motion for rehearing.     The appellate court had already submitted their

     memorandum and opinion on September 3, 2014.

          This Petition for Discretionary Review is due before the Court by February

     12, 2015.
                                        GROUNDS FOR REVIEW


1.     Did the trial court err by denying Mr. Patterson's Motion to Vacate and Dis
       miss dnd Set Sside Prior Void Enhancement without a hearing?

2.     Did Mr. Patterson suffer actual and egregious harm from the enhancment sub
       mission of anl984 probated sentence that was suspended and probated and
       completed without revocation in 1991, at punistoraemt?

3.     Did the trial court err by not pronouncing the new sentence on punishment
       as ordered by the appellate court in their affirmation and remand without
       M:3?b,. .Patterson present?

4.     Did the trial court err by not ordering notification to the Texas Department
       of Criminal Justice-Classification Division, of the modified or modification
       of the Mandate oardar^'j;

5?                                   ARGUMENTS AND AUTHORITIES

1.    Did the trial court err by denying Mr. Patterson 's Motion to Vacate and Dis-          s
      miss andsSet Aside Prior Void Enhancement without a hearing?

2.    Did Mr. Patterson suffer annual and egregious harm from the enhancment sub
      mission of a 1984 probated sentence that was suspended and probated and
      completed without revocation in 1991, at punishment?

      When a petitioner argues, correctly, that there was not any evidence to support
the State's required elements of their. Notice of Intent to Use av.Pridr Conviction

for Enhancement, he is asking the Court for review and fact finding orrjiijs?, rrajti'on.
or shearing i\.;r

      In Texas it is well settled that a probated sentence is not a final conviction

for enhancement purposes until it is revoked.         See Ex parte Lanqly, 833 S.W.2d 141,
143 (Tex.Crim.App. 1992), cifting Ex parte Murchison, 560 S.W.2d 654, 656 Tex.Crim.
App. 1978)(For enhancement purposes, prior convictions must be final); Jordon v.

State, 36 S.W.3d B71; 873 (Tex.Crim.App. 2001).         See also Skillerno v. State, B90

S.W.2d B49, 883 (Tex.App.-Austin 1994, no pet.)(Concluding that if the sentence

is suspended, then the conviction does not become final for purposes of enhancement).

"Where a suspended sentence is imposed^ [ss.;Mr. Patterson's was] the conviction may

not be relied on as a basis for punishing appellants as a habitual criminal." Ellis

v. State, (Cr.App. 1938) 134 Tex.Crim. 346 (115 S.W.2d 660).
     Me. Patterson was harmed and he challengescavsrs the State's Notice of Intent

to Sentence him under the repeat offender provision under Tex.P.Cd.,§12.42(c)(2)
                                                                                 1
and its alleged paragraph of a probated probated asna prior finsl conviction.
His enhancement to a life sentence was,based on these Notices and the State reques-

ing the the Court to take judicial notice of the contents of the Court's file in

Cause number F84-215-M,: (1984), in which the contents of that file were never pre

sented or discussed in open court in his punishment hearing.     (See.RR:Vol. 8, Pg.

6, Lines 10-15) of the punishment hearing of May 23, 2006, in Cause Nos. 416-B2554-

05 and 416-82555-05).    The State failed to make a prima facie showing that the prior

allegedJ.in the repeater paragraph was a final conviction and that it was.- a:, suspended

sentence and could not be used to increase the punishment. (See Diremiggio st ii

of this petition)J[_We accordingly hold that the state failed to make a prima facie

showing of finality").

     In connection with §12.42 of the Texas Penal Code enhancement provisoin and

theiropredecessors, the courts have held uniformally that the prior conviction ;must

be aifiirnal conviction:, (emphasis added). See Jordan v. State, 36 S.W.3d 871, 873

(Tex.Crim.Appl 2001), citing Langly, supra; Murchison, supra, Ex parted Menefee

v. State, 175 S.W.3d 500, 506 (Tex.App.-Beaumont 2005); Spiers v. State, 552 S.W.2d

851 (Tex.Crim.App. 1977)(Showing suspendsd sentence was never revoked, and "absent

proof of conviction cannot be used for enhancement").

     The State did not offer any proof that Mr. Patterson's probated suspended sen

tence was a final conviction and that it could be used for enhancement purposes.

There was no evidence, no plea of true, but merely insufficient evidence to support

the enhancement reaching the:;level of violation of Due Process and Equal Protection

of the liiaw under the U.S. Constitution's 6th and 14th Amendments and the Texas
Constitution, Art. I, §10.

     This Honorable Court has held in several cases that when the State seeks to

have a defendant declared to be, and punished, as an "habitual dffender"cby so

alleging in the indictment of notice of intent and attempting to establish those

allegations during the punishment stage of the trial, and it is later found on

appeal that the evidence is insufficiant to sustainrthe the enhancement paragraph,

allegations, the punishment is voidand the sentence will be set aside and the cause

will be remanded to the trial court to reasse punishment.

     The Texas Legislature has held thst if reversible error is found to exist in

the punishment stage of the trial, the defendant will only receive a new triallon

the issue of punishment.     (Effective 70th Leg. ch. 179, pg. 2711, Section 1, now

Art. 44.29(b), V.A.C.C.P).    Sea Exparte Swell, 742 S.W.2d 393 (Tex.Crim. App.); Ex

paete Benfieldy 697 S.W.2d 420 (Tex.Grim.App. 1985); Ex parte Augustosy 639 S.W.2d

481 (Tex.Crim.App.19B2); Hickman v. State, 548 S.W.2d 736 (Tex.Crim.App. 1977);

Ex parte Quidrke, 710 S.U.2d. (Tex.Crim.App. 19B6).

     Mr. Patterson avers? that his prior cause was not available for enhancement

purposes since he successfully served out his probation.     Consequently, the enhance
ment, prior to the Texas Legislature's Acts 1997, 75th Leg., ch. 667, §7, wss not
available for enhancement.     See Scott v. State, 55 S.W.3d 593, 596 (Tex.Crim.App.
2006)("...An offense committed before the effective date of this Act is covered

by the law in effect when the offense was committed-, and the former law is contin
ued for that purpose'.1).   See also Nolan v. State, 102 S.W.3d 231, 243 (Tex/iApp^-
Houston [14th Dist.],2003, pet. ref'd.)(John S. Anderson, Justice, concurring) ("When
the Legislature increases punishment by the removal of a s^aTt:u*a£V restriction, that
increase violates.the ban on ex post factod laws).     Because section 12.42 increased
Mr. Patterson's punishment by removing a restriction on the use of his 19B4 offense,
it is an ex post facto law.     Before 1997, the suspended probated sentence was not!
                                             5
deemed a conviction undsr the repeater offender statute.      See Davis v. State, 968

S.W.2d..368, 372 (Tex.Crim.App.1998).

       Mr.;' Patterson continues to assert that the trialicourt erred and the State

violated the federal constitutional prohibition against ex post^facto laws by per-

mitting the use of Mr. Patterson's 1984 suspended, probated sentence to enhance

punishment under 12.42(c)(2) of the Texas Penal Code, which did not exist in 1984.

Therefore, his lack of a conviction and non-finalty based on his completion of

community supervision in 1991, was retroactively converted to a conviction by Tex.

P.Cd.:§12.42)(1) by the State.     See Exhibit A.   Once again, when the legislature

increases punishment by the removal of astatutory restriction, that increase vio

lates the ban on ex post facto in situations such as Mr. Patterson's .=;.:.= :;    i.

Nolan, supra.

       Because §112,42(g)(l)increased Mr. Patterson's punishment by removing a restriction

on the use of his 19B4 offense, it is a violation of an ex post facto law.        See

Acts, 1975, 64th Leg. R.S. ch. 231, §1,: sec, 3d(C), 1975 Tex.Gen.Laws 572, 573

[Specifically provided that a dismissal and discharge/would not be deemed a con-

.iviction] .

       Mr;;.Patterson herein cites Perry v. State. Tex.App. liexis 2935 (2009) at §IV,
#2.    The judgement in that case reveals on its face that Perry was sentenced to
three years imprisonment, but such sentence, was suspended and he was placed on

probation.     In Perry's case there was no evidence that Perry's probated.,senctence

was ever revoked.


       In M^/ Patterson's file of 19B4 case there was no evidence that his probated
sence was ever revoked.: In fact the Docket Sheet shows that it wasjnot..(See Pg.

3 of Docket Sheet).     The Perry case conviction was:not final for enhancement pur-

purposes, as also Mr. Patterson's, and the State should not have been allowed to

rely on that offense for enhancement.     Where a defendant receives a probated sentence

and that probation is never revoked the conviction is not final.     In Mr. Patterson's
2-V!                                        6
enhancement the State failed to make a prima facia showing of finalty.

        The proper remedy should be to vacate, set aside and dismiss the void enhance

ment.     Fletcher v. State, 214 S.W.3d 57 (Tex.Crim.App.2007); Jones v. State, 711

S.W.2d 634, 736 (Tex.Crim.App. 1986).

        In Rich v. State, S.W.3d 50B, 513 (Tex.Crim.App. 2006), cac and remanded)(state-

ing that when there is error at the punishment phase, the case may be remanded

for the proper assessment of punishment.? ,The,iState conceded;that the enhancement

was improper and that the cause should be remanded for a new punishment hearing).

See also Tomlin v. State, 722 S.W.2d 702, 705 (Tex,Crim.App. 1987); Jordan v. State,

256 S.W.3d 286, 292 (Tex.Crim.App. 2008)(stating the error may not be deemed harm

less).

3.      Did the Court" of Appeals err by dening Mr. Patterson Appeal for Want of juris
        diction?


        In Texas, district court are courts of general jurisdiction with the power

to hear and determine any cause that is cognizable by the courts oflaw or equity

and to grant any relief that could be granted by eithercourts of Iaw---or equity.

See Thomas v. Long, 207 S.W.3d 334, 340 (Tex.2006)(stating "District Court jurisdic

tion consists of exclusive, appellate, and original jurisdiction of all action,

proceeding, and remedies, except in cases where exclusive, appellate, original

jurisdiction may be conferred by this Constitution or other law on some other court,

tribunal or administrative body"). See Tex. Courts V, B8.

        The Court of Appeals in its memorsndum opinion and judgment on September 3,

2014, in the Appellant Cause No. 05-14-01098-CR and No. 05t14-01100-CR (At this

time Mr. Patterson would ask this Honorable Court to take judicial notice pursuant

to Fed.R.Evid., Rule 201 that since the Easthsm Unit of the TDCJ-CID does not allow

prisoners to mske copies of/documents, legal or otherwise and as such is unable

to furnish the Court a copy of the court of appeals memorandum opinion),was dis

missed for want of jurisdiction.     Mr. Patterson avers that in the Court's opinion,

                                           ~1
the court failed to cite or focus on any appellate procedure rules that would show,

allude or conclude they lack jurisdiction over the appeals.     The Tex.R.App.Proc.

requires the courts of appeals to address "every issue raised and necessary to
final disposition of the appeal."   See Tex.R.App.Proc 47.1.     The court did not
address every issue. Mr* Patterson raised for review, herein.    As stated and noted,
court of appeals "the court of appeals [u]nder the provision of the 1980th Amend
ment to Art. V. Section 6 reads, the decision of said court [Courts of Appeals]
shall be conclusive on all questions of fact brought before them on appeali.or error."

Tex. Const, art V§6.

     In recognizing that the Texas Constitution gives the courts of appeals con
clusive authority to determine the factual sufficiency of an affirmative claim
or defense.   The Texas.Court of GrimihalaAppeals, stated: "within Art. V, §6, oper
ates to limit our jurisdiction and confers conclusive jurisdiction tba the courts
of appeals to resolve questions of weight and preponderance of the evidence ade
quate to prove a matter that the defendant must prove.
     Moreover, :when the courts of appeals are called upon to excercise their fact
jurisdiction that it examine whether (the Appellant) prove his claim or defense
or other fact issue where the lawzhas designated thst the defendant has the burden
of proof by a preponderance of the evidence, (the correct standard of review is
whether after considering all the facts and evidence relevant to the issue at hand,
 the judgment is so against the great weight and prepondurance of the facts and
 evidence so as to be manifestly unjust). Therefore due to the Texas Constitution,
 Art. V §6, Appellant avers that the Court of Appeals does have jurisdiction as
the record will reveal his appeal is not reference to an application for writ of

habeas corpus regarding a final conviction, but only asks the Court to review the

improper ruling of the trial court reference to his foregoing motion.

     Under Rule 25.2, Tex.R.App.P., a defendant may appeal any appealable order

or judgment, such as in the instant case.   Rule 25.2(a)(2).
                                         prayer

       FOR ALL THE REASONS Mr. Patterson prays this. Honorable Court will GRANT this

Petition for Discretionary Review, appoint counsel and either grant relief or re

mand the cases back to the Court of Appeals for the Fifth Circuit for resolution

of the issues.


       So prayed this Petition will be granted in all things.


                                                  Respe




                                                  JOHN WESLEY PATTERSON, III 1375031
                                                  Petitioner pro se
                                                  Eastham Unit
                                                  2665 Prison Rd. #1
                                                  Lovelady, TX 75851




                          DECLARATION/CERTIFICATE OF SERVICE

       I, John Wesley Patterson, III, TDCJ-CID No. 1375031 being presently-incarcerated

in the Eastham Unit of the fiTDCJ-CIDji' in Houston County, Texas declare under penalty

of purjury that the facts and statements in the above and foregoing Petition are

true and correct pursuant to Texas Civil Procedures and Remedies Code, §132;001

et.   seq.

      I further declare and certify that a copy of the Petition has been forwarded

on this the 10th day of January, 2014, first class, postpaid, addessed to: State

Prosecuting Attorney, P;b; Box 13046, Austin, Texas 78711.
       Executed on this the 10th day of January, 2015.



                                                   JOHN WESLEY PATTERSON, III 1375031
                                                   Petitioner pro se
-^ Etcl'M^M              A^V
                               -/S^hfr

       {& 5As* &


        EXHIBITS A & B
Dismissed and Opinion Filed September 3, 2014




                                             In The

                                   Court of Appeals
                        Jffiftlj Btatrtct of utexas at Ballaa
                                     No. 05-14-01098-CR
                                     No. 05-14-01100-CR

                        JOHN WESLEY PATTERSON III, Appellant
                                               V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 416th Judicial District Court
                                   Collin County, Texas
                     Trial Court Cause Nos. 416-82554-05, 416-82555-05

                             MEMORANDUM OPINION
                           Before Justices Francis, Myers, and Lewis
                                  Opinion by Justice Francis
       John Wesley Patterson was convicted of multiple counts of aggravated sexual assault of a

child, sexual assault of a child, and indecency with a child, as alleged in separate counts in two

indictments.    On direct appeal, this Court modified the trial court's judgments to correct

inaccuracies, and affirmed as modified. We also remanded for punishment as to one of the

counts included in trial court no. 416-82554-05 and ordered the trial court to enter new

judgments reflecting the modifications set out in ourjudgments. Patterson v. State, Nos. 05-06-

00808-CR, 05-06-00876-CR (Tex. App.—Dallas Nov. 29, 2007, no pet.) (not designated for

publication).

       On November 13, 2013, appellant filed a "motion for nunc pro tunc ruling."      On March

10, 2014, appellant filed a "motion to vacate and dismiss and set aside a prior void
enhancement." On July 16, 2014, appellant filed a "motion requesting compliance with Texas

motion ministerial duties," in which he appears to be seeking a ruling on his "motion for nunc

pro tunc ruling." On July 29, 2014, the trial court, by written order, denied appellant's pro se

motions. These appeals followed. We conclude we lack jurisdiction over the appeals.

       "Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. The right to appeal in a criminal case is a statutorily created right. See McKinney v.

State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex.

Crim. App. 2004). See also Tex. Code Crim. P. Ann. art. 44.02 (West 2006) (providing right of

appeal for defendant); Tex. R. App. P. 25.2(a)(2) (rules for appeal by defendant). Appellate

courts may consider appeals by criminal defendants only after conviction or the entry of an

appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).

        An order denying a motion seeking nunc pro tunc relief is not appealable. See Sanchez v.

State, 112 S.W.3d 311, 312 (Tex. App.—Corpus Christi 2003, no pet.) (per curiam); Everett v.

State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, no pet.); Allen v. State, 20 S.W.3d 164, 165

(Tex. App.—Texarkana 2000, no pet.). See also Abbott v. State, 271 S.W.3d 694, 696-97 (Tex.

Crim. App. 2008) (appellate court lacked jurisdiction to review appeal order denying motion for

additional time credit); State v. Ross, 953 S.W.2d 748, 752 (Tex. Crim. App. 1997) (suggesting

mandamus proper way to challenge denial of nunc pro tunc judgment).

        Moreover, appellant's "motion to vacate and dismiss and set aside a prior void

enhancement" is, in substance, a collateral attack on the prior felony conviction used to enhance

appellant's sentences and thus the sentences themselves. However, the post-conviction habeas
corpus procedure set out in the Texas Code of Criminal Procedure is the sole procedure by which

                                                  -2-
to collaterally attack final felony convictions, and this Court does not have jurisdiction over post

conviction habeas corpus proceedings involving final felony convictions. See Tex. Code Crim.

P.Ann, arts. 11.05, 11.07 (West 2005 & Supp. 2013).

       Accordingly, we dismiss the appeals for want ofjurisdiction.




Do Not Publish                                      /Molly Francis/
Tex. R. App. P. 47                                  MOLLY FRANCIS
141098F.U05                                         JUSTICE




                                                -3-
                                   Court of Appeals
                        iFtftlt Ufstrfct of (Uexas at Ballas

                                      JUDGMENT


JOHN WESLEY PATTERSON III,                          On Appeal from the 416th Judicial District
Appellant                                           Court, Collin County, Texas
                                                    Trial Court Cause No. 416-82554-05.
No. 05-14-01098-CR         V.                       Opinion delivered by Justice Francis,
                                                    Justices Myers and Lewis participating.
THE STATE OF TEXAS, Appellee

        Based on the Court's opinion of this date, we DISMISS the appeal for want of
jurisdiction.


Judgment entered September 3, 2014




                                              _4_
                                   (ftourt of Appeals
                        ifftftti Bistrtct of otexas at Ballas

                                      JUDGMENT


JOHN WESLEY PATTERSON III,                          On Appeal from the 416th Judicial District
Appellant                                           Court, Collin County, Texas
                                                    Trial Court Cause No. 416-82555-05.
No. 05-14-01100-CR         V.                       Opinion delivered by Justice Francis,
                                                    Justices Myers and Lewis participating.
THE STATE OF TEXAS, Appellee

        Based on the Court's opinion of this date, we DISMISS the appeal for want of
jurisdiction.


Judgment entered September 3, 2014




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