Ex parte Johnson
| Decision Date | 16 February 2000 |
| Parties | (Tex.Crim.App. 2000) EX PARTE MARK ANTHONY JOHNSON, Applicant NO. 73468 |
| Court | Texas Court of Criminal Appeals |
FROM GALVESTON COUNTY
O P I N I O N
The opinion was delivered PER CURIAM.
This is a post-conviction application for a writ of habeas corpus forwarded to this Court under the provisions of Article 11.07, V.A.C.C.P. Applicant was convicted of possession of a controlled substance, and punishment was assessed at a term of twenty-five years imprisonment. Applicant's appeal was dismissed for lack of jurisdiction. Johnson v. State, No. 01-99-00151-CR ().
Applicant contends that he was denied his right to a meaningful appeal because his counsel did not timely file notice of appeal. The trial court has entered findings of fact indicating that, although Applicant's trial counsel informed the visiting judge of Applicant's desire to appeal pretrial issues, he did not file written notice of appeal. The regular presiding judge did not become aware of Applicant's desire to appeal and appoint appellate counsel until after the time to properly invoke the Court of Appeals' jurisdiction. The trial court has recommended that this Court grant an out-of-time appeal.
We dismiss. This Court does not have jurisdiction to consider an application for writ of habeas corpus pursuant to Art. 11.07 until the felony judgment from which relief is sought becomes final. Art. 11.07 3(a) V.A.C.C.P.;1 Ex Parte Thomas, 953 S.W.2d 286, 289 (Tex. Crim. App. 1997); Ex Parte Brown, 662 S.W.2d 3 (Tex. Crim. App. 1983); see also Ex Parte Renier, 734 S.W.2d 349 (Tex. Crim. App. 1987) (Teague, J., dissenting) (). A direct appeal is final when the mandate from the court of appeals issues. Carter v. State, 510 S.W.2d 323, 324 (Tex. Crim. App. 1974). Prior to the mandate, a judgment is not final.2
Applicant's claim is not ripe, because the application for writ of habeas corpus was filed during the pendency of the direct appeal. Applicant filed his application in the trial court on April 28, 1999, prior to issuance of the mandate of the court of appeals on July 23, 1999. Consequently, any disposition of the merits of this case is premature, and the application is dismissed without prejudice. See Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997) (...
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Gonzalez v. Thaler
...of direct review" is the date on which state law marks finality—in Texas, the date on which the mandate issues. Ex parte Johnson, 12 S.W.3d 472, 473 (Crim.App.2000)(per curiam) . Applying this approach, Gonzalez contends that his habeas petition was timely because his direct review "conclud......
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...court’s decision and directing it to have the appellate court’s judgment duly recognized, obeyed, and executed."); Ex parte Johnson , 12 S.W.3d 472, 473 (Tex. Crim. App. 2000) (explaining judgment is not final before issuance of the mandate). The issuance of the mandate is particularly impo......
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Gonzalez v. Thaler
...of direct review” is the date on which state law marks finality—in Texas, the date on which the mandate issues. Ex parte Johnson, 12 S.W.3d 472, 473 (Crim.App.2000)(per curiam) . Applying this approach, Gonzalez contends that his habeas petition was timely because his direct review “conclud......
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...A Enterprises, 934 P.2d 1253, 1256 (Wyo.1997) (judgment is final when ‘opinion is filed with the clerk’), with Ex parte Johnson, 12 S.W.3d 472, 473 (Texas CCA 2000) (per curiam) (judgment is final at ‘issuance of the mandate’).” Gonzalez, 132 S.Ct. at 655 n. 11. See also Lawrence, 549 U.S. ......