Opinion issued April 7, 2016

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-16-00017-CR

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CHARLES RAY FOSTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1439225

MEMORANDUM OPINION

On February 3, 2015, after appellant, Charles Ray Foster, pleaded guilty to 

felony possession of a controlled substance, the trial court assessed his punishment 

at ten years’ confinement, in accordance with his plea bargain with the State. The
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trial court certified that this was a plea-bargain case and that appellant had no right 

of appeal. This underlying judgment was not appealed and became final.

On December 4, 2015, appellant, proceeding pro se and incarcerated, filed a 

post-conviction motion with the trial court styled as “Defendant’s Motion 

Requesting A Due Process Review of Reducing His Illegal Sentence Tex. Const. 

Art. 1, §29.” The trial court summarily denied appellant’s motion on December 7, 

2015, by handwriting “Denied” on his cover letter, without signing a separate order. 

On December 8, 2015, the trial clerk issued a separate memorandum response to 

appellant informing him that the trial court had denied his motion.

On December 28, 2015, appellant timely filed a notice of appeal, attempting 

to appeal from the denial order. After appellant filed a pro se appellant’s brief, the 

State filed a motion to dismiss the appeal, contending that we lack jurisdiction. 

Appellant filed a pro se “Appellant’s Motion to Proceed on This Appeal,” which we 

construe as his opposition to the motion. We agree with the State, grant its motion, 

and dismiss the appeal for lack of jurisdiction.

There is no constitutional right to appellate review of criminal convictions. 

See Phynes v. State, 828 S.W.2d 1, 20 (Tex. Crim. App. 1992). The right to appeal 

in criminal cases is conferred by the legislature, and a party may appeal only from 

judgments of conviction or interlocutory orders authorized as appealable. See TEX.

CODE CRIM. PROC. ANN. art. 44.02 (West Supp. 2015); TEX. R. APP. P. 25.2(a)(2);
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see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). We do not 

generally have jurisdiction over proceedings involving a collateral attack of a final 

felony conviction because such proceedings are governed by Article 11.07 of the 

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07, 

§ 5 (West Supp. 2015) (stating that, “[a]fter [a felony] conviction the procedure 

outlined in this Act shall be exclusive and any other proceeding shall be void and of 

no force and effect in discharging the prisoner”); see also Ater v. Eighth Court of 

Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating Court of Criminal 

Appeals is “the only court with jurisdiction in final post-conviction felony 

proceedings.”).

In this case, appellant is not appealing from a judgment of conviction or 

appealable interlocutory order. Instead, appellant’s motion in the trial court 

collaterally attacks the merits of his felony conviction by requesting that the trial 

court reduce his sentence from ten years in prison to two years’ imprisonment in a 

state jail because he claims he was denied the effective assistance of counsel. 

However, an article 11.07 writ of habeas corpus is the exclusive means to accomplish 

appellant’s objective in a collateral proceeding. Although such a felony habeas 

application must be filed with the trial court, the writ, which issues by operation of 

law, “must be made be made returnable to the Court of Criminal Appeals of Texas 

at Austin, Texas.” TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3(a) (West Supp. 
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2015). Thus, this Court has no jurisdiction over an appeal from a ruling of the trial 

court on a collateral attack of a final post-conviction felony proceeding. See In re 

McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. 

proceeding) (“[O]nly the Texas Court of Criminal Appeals has jurisdiction in final 

post-conviction felony proceedings.”); Smith v. Lynaugh, 792 S.W.2d 110, 112 (Tex. 

App.—Houston [1st Dist.] 1990, no pet.) (holding that this Court lacks jurisdiction 

over appeal from trial court’s ruling on post-conviction collateral attack).

CONCLUSION

Accordingly, we grant the State’s motion to dismiss, and dismiss this appeal 

for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss all other pending 

motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Do not publish. TEX. R. APP. P. 47.2(b).