Justin Murphy v. State, 03-15-00105-CR

In 2007 Murphy pleaded guilty to DWI and was sentenced; that conviction was used to enhance a 2011 DWI charge.
In 2013 Murphy filed a pretrial petition for writ of habeas corpus alleging trial counsel in 2007 was ineffective for not investigating a sleep disorder; after hearings Judge Wisser denied relief in an order entered August 28, 2014 and filed August 29, 2014.
In January 2015 Murphy’s counsel filed a second habeas petition (claiming inability to obtain the written findings), a motion to reconsider, and a motion for rehearing; the clerk’s file shows an unsigned order associated with the second petition and a filed order denying another evidentiary hearing on February 9, 2015.
On February 10, 2015 counsel filed a notice of interlocutory appeal from the order denying habeas relief; the only signed, filed denial in the record was the August 2014 order, so the State moved to dismiss the appeal as untimely.
The Third Court dismissed the appeal for want of jurisdiction. Murphy then moved for rehearing, attaching a January 26, 2015 document titled “Order on Second Petition for Writ of Habeas Corpus” (not in the trial clerk’s file and lacking a clerk’s date stamp) that purportedly restarted the appellate clock.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the January 26, 2015 order (appended to the rehearing motion but not in the trial‑court file) can revive a timely notice of appeal	Murphy: the trial court granted a second habeas petition and restarted the appeal deadline, making the February 10 notice timely	State: the appended document is not in the appellate record and thus cannot be considered; dismissal was proper	The appended order cannot be considered because it is not part of the record and is void for reasons explained; dismissal stands
Whether Judge Wisser had authority to consider/enter an order on a second habeas petition and thereby restart the appellate deadline	Murphy: second petition excused untimely appeal because counsel couldn’t obtain findings and the court granted relief restarting the clock	State: Texas law tightly limits second habeas petitions (newly discovered evidence only) and the court’s plenary power expired 30 days after the August 2014 order so it lacked jurisdiction	The second petition was unauthorized under Tex. Code Crim. Proc. art. 11.59 and Judge Wisser’s plenary power had expired, so any January 26 order was void

Ex parte Delgado, 214 S.W.3d 56 (Tex. App.—El Paso 2006) (discussing limits on trial court plenary power)
Ex parte Matthews, 452 S.W.3d 8 (Tex. App.—San Antonio 2014) (plenary power and post‑order actions)
Dewalt v. State, 417 S.W.3d 678 (Tex. App.—Austin 2013) (unawareness of an appealable order does not excuse untimely notice of appeal)
Samara v. Samara, 52 S.W.3d 455 (Tex. App.—Houston [1st Dist.] 2001) (appellate courts may not consider documents outside the appellate record)
Till v. Thomas, 10 S.W.3d 730 (Tex. App.—Houston [1st Dist.] 1999) (same)
Perry v. Kroger Stores, 741 S.W.2d 533 (Tex. App.—Dallas 1987) (same)
LaPointe v. State, 166 S.W.3d 287 (Tex. App.—Austin 2005) (court must decide appeals on the record filed)