Andrew Pete v. State

• Court: Court of Appeals of Texas
• Decided: June 21, 2018
• Docket: 05-18-00573-CR
• Status: Published

Opinion

Dismissed and Opinion Filed June 21, 2018

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00573-CR No. 05-18-00574-CR No. 05-18-00575-CR ANDREW PETE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F12-33559-V, F12-33560-V & F12-33561-V

MEMORANDUM OPINION Before Justices Francis, Fillmore, and Whitehill Opinion by Justice Francis Andrew Pete was convicted of three aggravated sexual assaults of a child younger than

fourteen years of age and, on November 15, 2017, the trial court assessed punishment at eight

years in prison for each offense. In May 2018, appellant filed a motion for out-of-time appeals in

the trial court. By order dated May 11, 2018, the trial court denied his motion, stating that it lacked

jurisdiction to grant appellant the relief he requested. Appellant’s notices of appeal were filed in

this Court on May 17, 2018.

When a criminal defendant misses the deadline to file a notice of appeal following

conviction, intermediate appellate courts lack jurisdiction over the appeal. Olivo v. State, 918

S.W.2d 519, 522 (Tex. Crim. App. 1996). Intermediate appellate courts may obtain jurisdiction

after those deadlines have passed only if the Texas Court of Criminal Appeals grants the defendant the ability to pursue an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241,

243 (Tex. Crim. App. 1991) (orig. proceeding); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.

App. 1997) (explaining that granting an out-of-time appeal “restores the pendency of the direct

appeal”). To be entitled to an out-of-time appeal, the defendant must file an application for a writ

of habeas corpus with the clerk of the convicting court. In re Escareno, 297 S.W.3d 288, 289

(Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3, 5 (West 2015). The

application is then transmitted to the Texas Court of Criminal Appeals, which has sole jurisdiction

to grant the relief of an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3,

5; Ater, 802 S.W.2d at 243 (“We are the only court with jurisdiction in final post-conviction felony

proceedings.”).

Instead of filing an application for writ of habeas corpus under article 11.07, appellant filed

a motion with the trial court, requesting that it authorize out-of-time appeals. He now appeals the

denial of that motion. Neither the trial court nor this Court has jurisdiction to grant the relief he

requests. See Ashorn v. State, 77 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—

Houston [1st Dist.] Feb. 16, 2017, no pet.) (mem. op., not designated for publication) (stating that

intermediate appellate court does not have jurisdiction to grant out-of-time appeal, which must be

sought through post-conviction habeas application made returnable to Texas Court of Criminal

Appeals under article 11.07).

We dismiss these appeals for want of jurisdiction.

/Molly Francis/ MOLLY FRANCIS Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 180573F.U05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ANDREW PETE, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-18-00573-CR V. Trial Court Cause No. F12-33559-V. Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered June 21, 2018.

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ANDREW PETE, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-18-00574-CR V. Trial Court Cause No. F12-33560-V. Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ANDREW PETE, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-18-00575-CR V. Trial Court Cause No. F12-33561-V. Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

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