PERKINS v. STATE

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Court of Appeals of Texas, San Antonio.

Samuel C. PERKINS, Appellant v. The STATE of Texas, Appellee

No. 04-17-00023-CR

Decided: February 22, 2017

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

MEMORANDUM OPINION

On January 10, 2017, Appellant Samuel Charles Perkins filed a motion in this court for leave to file a late notice of appeal. His motion listed twelve different magistrate court cause numbers, but his motion did not identify a specific judgment for which he wishes to file a late notice of appeal. The clerk's record contains this court's mandate in appeal number 04-16-00467-CR, which this court issued on November 21, 2016. The clerk's record also contains a number of motions and orders, but it does not contain any final judgment, and, from our review of the clerk's record, we are unable to determine what judgment Appellant seeks to appeal.

Further, this court lacks jurisdiction in final post-conviction felony proceedings.1 Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).

On January 20, 2017, we notified Appellant that the clerk's record does not appear to contain an appealable order or judgment. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006) (authorizing a defendant in a criminal action to appeal); Abbott v. State, 271 S.W.3d 694, 697 (Tex. Crim. App. 2008) (reiterating that the right to appeal under article 44.02 is limited to appeal from a final judgment). We ordered Appellant to show cause in writing not later than February 6, 2017, why this appeal should not be dismissed for want of jurisdiction. See Abbott, 271 S.W.3d at 697 n.8. We warned Appellant that if he failed to show cause in writing as ordered, this appeal would be dismissed. See Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012) (citing Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)) (“If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.” (emphasis added)); accord Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). To date, Appellant has not filed any response to our January 20, 2017 order.

Because the clerk's record does not contain an appealable order or judgment, we have no authority to address Appellant's complaints. See TEX. CODE CRIM. PROC. ANN. art. 44.02; Abbott, 271 S.W.3d at 697, n.8 (“[C]ourts of appeals have no appellate jurisdiction in criminal matters ‘absent a specific authorization by law.’ ” (quoting Abbott v. State, 245 S.W.3d 19, 23 (Tex. App.—Waco 2007), rev'd, 271 S.W.3d 694 (Tex. Crim. App. 2008)) (Gray, C.J., dissenting)). We dismiss this appeal for want of jurisdiction. See Abbott, 271 S.W.3d at 697 n.8.

FOOTNOTES

1.   When applicable, an appellant may petition the trial court for court-appointed counsel to prepare an application for writ of habeas corpus for permission to pursue an out-of-time appeal with the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating that an out-of-time appeal from a final felony conviction may be sought by filing a writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure).

PER CURIAM