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) (discussing
rationales for final felony conviction requirement). 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) (discussing implications of a dismissal in regard to subsequent writ
DELIVERED: February 16, 2000
1. The statute provides: "After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas." [emphasis supplied].
2. Although, as here, a court of appeals may have initially issued its opinion, while a motion for rehearing or petition for discretionary review is viable, the direct appeal continues.