In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-14-00296-CR 

FRANK D. CARTER, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 364th District Court 

Lubbock County, Texas 

Trial Court No. 89-409,752, Honorable Bradley S. Underwood, Presiding 

 

April 10, 2015 

 

MEMORANDUM OPINION 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

Appellant, Frank D. Carter, appeals the trial court’s order dismissing for want of 

jurisdiction his motion to set aside the judgment entered against him in trial court cause 

number 89-409,752 in June 1990. We will dismiss the appeal for want of jurisdiction.
2

Factual and Procedural History

On June 12, 1990, appellant was convicted of aggravated robbery and 

sentenced to life imprisonment in trial court cause number 89-409,752.1 Appellant filed 

his motion to set aside that judgment as void on July 7, 2014, alleging, it seems, that 

dismissal of an earlier indictment on the charges in trial court cause number 89-409,601 

was a relinquishment of jurisdiction over the parties and the matter generally and 

warranted dismissal of the re-indicted case, trial court cause number 89-409,752, as 

well. The trial court dismissed that motion for want of jurisdiction by order signed July 

14, 2014. Appellant has appealed the denial to this Court, maintaining that the trial 

court did have jurisdiction and was required to set aside the 1990 conviction because it 

was void. He asks this Court to conclude that the trial court did have jurisdiction to 

entertain his motion and permit him to proceed below.

Applicable Law

“The standard for determining [our] jurisdiction is not whether the appeal is 

precluded by law, but whether the appeal is authorized by law.” Abbott v. State, 271 

S.W.3d 694, 696–97 (Tex. Crim. App. 2008) (citing, inter alia, TEX. CONST. art. V, § 6(a), 

TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2007), and TEX. R. APP. P. 25.2(a)(2)).

Article 44.02 of the Texas Code of Criminal Procedure provides a defendant “in 

any criminal action” with the right of appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02. As 

a practical matter, a defendant’s general right to appeal under Article 44.02 “‘has always 

 

1

This Court affirmed appellant’s 1990 conviction on direct appeal. See Carter v. State, No. 07-

90-00252-CR (Tex. App.—Amarillo May 1, 1992, pet. ref’d).
3

been limited to appeal’ from a ‘final judgment.’” See Abbott, 271 S.W.3d at 697 n.8 

(citing State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990) (en banc)). A 

“final judgment” refers to a final judgment of conviction: “A judgment is the written 

declaration of the court signed by the trial judge and entered of record showing the 

conviction or acquittal of the defendant.” See TEX. CODE CRIM. PROC. ANN. art. 42.01, 

§ 1 (West Supp. 2014); Dewalt v. State, 417 S.W.3d 678, 683–84 (Tex. App.—Austin 

2013, pet. ref’d). This Court may also have jurisdiction over this appeal if the trial 

court’s order denying appellant’s motion to set aside the judgment constitutes an 

appealable order, that is, an appeal that the Legislature has specifically authorized by 

statute. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010); Abbott, 

271 S.W.3d at 697; see also TEX. R. APP. P. 25.2(a)(2) (providing that a criminal 

defendant has the right to appeal a judgment of guilt or other appealable order). In the 

absence of a final judgment or “other appealable order,” this Court lacks jurisdiction to 

address the merits of appellant’s claims. See Gutierrez, 307 S.W.3d at 323; Abbott, 

271 S.W.3d at 697.

Analysis

It is clear that the order from which appellant attempts to appeal is not a final 

judgment of conviction. See TEX. CODE CRIM. PROC. ANN. art. 42.01; Dewalt, 417 

S.W.3d at 683–84. And appellant has not cited us to any statutory authority that would 

authorize the appeal of a denial of a motion to set aside a judgment of conviction, such 

as the one at issue in the instant case. Further, we have found no such authority 

supporting our jurisdiction to entertain an appeal from this post-conviction motion to set
4

aside the 1990 conviction.2 Having found no such authority, we lack jurisdiction over 

this appeal. See Gutierrez, 307 S.W.3d at 323; Abbott, 271 S.W.3d at 697.

Conclusion

Having found that we lack jurisdiction over the instant appeal, we dismiss it for 

want of jurisdiction. See TEX. R. APP. P. 43.2(f).

Mackey K. Hancock

 Justice

Do not publish. 

 

2

To the contrary, Article 11.07 of the Texas Code of Criminal Procedure vests exclusive 

jurisdiction over post-conviction relief from final felony convictions in the Texas Court of Criminal Appeals. 

See Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013) (per 

curiam); see also TEX. CODE CRIM. PROC. ANN. art. 11.07, § 5 (West Supp. 2014).