Michael Anthony Moore v. The State of Texas Appeal from 272nd District Court of Brazos County (memorandum opinion )
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IN THE TENTH COURT OF APPEALS No. 10-16-00089-CR MICHAEL ANTHONY MOORE, Appellant v. THE STATE OF TEXAS, Appellee From the 272nd District Court Brazos County, Texas Trial Court No. 17957-272 MEMORANDUM OPINION On March 10, 2016, appellant, Michael A. Moore, filed his notice of appeal in the trial court. In his filing, Moore indicated that he wished to appeal from an order signed by the trial court on January 21, 2016. Texas Rule of Appellate Procedure 26.2(a) provides that a notice of appeal must be filed within thirty days after the trial court enters an appealable order, unless the defendant timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). If a motion for new trial is timely filed, the deadline for filing the notice of appeal is extended to ninety days from the date the trial court enters an appealable order. See id. Here, Moore has not explained that the trial court’s order is appealable, nor did he mention that he timely filed a motion for new trial. Accordingly, because Moore filed his notice of appeal more than thirty days after the trial court’s January 21, 2016 order, we cannot say that his appeal is timely. See id. We also mention that the Texas Court of Criminal Appeals has held that the exclusive post-conviction remedy in final felony convictions in Texas courts is through a petition for writ of habeas corpus filed pursuant to article 11.07 of the Code of Criminal Procedure. See Olivo v. State, 918 S.W.2d 519, 520 n.8 (Tex. Crim. App. 1996); Ex parte Mendenhall, 209 S.W.3d 260, 261 (Tex. App.—Waco 2006, no pet.); see also TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015). Moreover, only the Texas Court of Criminal Appeals has jurisdiction over post-conviction writs of habeas corpus in felony cases. See Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App.—Texarkana 2005, orig. proceeding); Self v. State, 122 S.W.3d 294, 294-95 (Tex. App.—Eastland 2003, no pet.). Therefore, based on the foregoing, we dismiss Moore’s appeal.1 AL SCOGGINS Justice A motion for rehearing may be filed within fifteen days after the judgment or order of this Court is rendered. TEX. R. APP. P. 49.1. If the appellant desires to have the decision of this Court reviewed by the Court of Criminal Appeals, a petition for discretionary review must be filed in the Court of Criminal Appeals within thirty days after either the day of the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals. See id. at R. 68.2(a). 1 Moore v. State Page 2 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Dismissed Opinion delivered and filed March 31, 2016 Do not publish [CR25] Moore v. State Page 3
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