John Paul Desmarais v. the State of Texas

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-22-00750-CR
                                      NO. 03-22-00751-CR



                                John Paul Desmarais, Appellant

                                                 v.

                                  The State of Texas, Appellee


                    FROM THE 27TH DISTRICT COURT OF BELL COUNTY
           NOS. 78134 & 81558, THE HONORABLE JAMES L. REX, JUDGE PRESIDING



                            MEMORANDUM OPINION


                Appellant John Paul Desmarais, an inmate in the Texas Department of Criminal

Justice, has filed two pro se documents seeking permission to appeal his convictions for

retaliation and “obstruction or retaliation” in cause numbers 78134 and 81558, respectively,

which the district clerk forwarded to this Court as notices of appeal. 1 See Tex. Penal Code

§ 36.06(c).




       1
           Although Desmarais asserts in the pleadings that we “have the authority to file an 11.07
[application for writ of habeas corpus] on [his] behalf,” it is clear from their substance that he is
attempting to appeal directly the trial court’s judgments of conviction. See Surgitek,
Bristol-Myers Corp. v. Abel, 

 (Tex. 1999) (courts look to substance of
pleading rather than its form or caption to determine its nature). Regardless, even were we to
construe the pleadings as original applications for writ of habeas corpus, we would lack
jurisdiction. See Dodson v. State, 

 (Tex. App.—San Antonio 1999, no pet.)
(“The courts of appeals have no original habeas corpus jurisdiction in criminal matters; their
jurisdiction is appellate only.”).
               Desmarais has already appealed both convictions, and mandate has issued. See

Desmarais v. State, No. 03-21-00450-CR, 

, at *1 (Tex. App.—Austin

Sept. 30, 2021, pet. ref’d) (mem. op., not designated for publication) (dismissing appeal for want

of jurisdiction because conviction was result of plea bargain, and trial court certified that

appellant had no right to appeal); Desmarais v. State, No. 03-21-00451-CR, 

,

at *1 (Tex. App.—Austin Sept. 30, 2021, pet. ref’d) (mem. op., not designated for publication)

(same). He is not entitled to a second appeal of either conviction, see Hines v. State, 

 (Tex. Crim. App. 1902) (“[O]nly one appeal can be made from a verdict and judgment of

conviction in any case.”), and this Court lacks jurisdiction to consider the present appeals, see

McDonald v. State, 

, 361–63 (Tex. App.—Amarillo 2013, pet. ref’d) (dismissing

for want of jurisdiction defendant’s subsequent appeal of conviction that had previously been

affirmed); Waggoner v. State, No. 03-22-00051-CR, 

, at *1 (Tex. App.—

Austin Feb. 11, 2022, no pet.) (mem. op., not designated for publication) (same). Accordingly,

we dismiss the appeals for want of jurisdiction.

               Desmarais also asks that we issue nunc pro tunc orders correcting alleged

misinformation in presentence investigations (PSI) conducted in each case. We lack jurisdiction

to do so. See Williams v. State, 

, 442–43 (Tex. Crim. App. 2020) (explaining

that nunc pro tunc orders “generally are reserved for actions taken outside a trial court’s plenary

power, requiring a trial court to rely on its inherent authority to make the record reflect what

previously and actually occurred during its plenary power”); Ex parte Poe, 

(Tex. Crim. App. 1988) (observing purpose of nunc pro tunc order is to correct clerical error in

trial court judgment).



                                                   2
                                            __________________________________________
                                            Edward Smith, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Dismissed for Want of Jurisdiction

Filed: December 23, 2022

Do Not Publish




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