Cecil R. McDonald v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00438-CR

CECIL R. MCDONALD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2000-434,614, Honorable Bradley S. Underwood, Presiding

January 17, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

Appellant, Cecil R. McDonald a/k/a Cecil Trimble, has filed Notice of Appeal in

this Court again seeking to appeal from his conviction for murder in trial court cause

number 2000-434,614. In his notice of appeal, he maintains that his appellate counsel

was ineffective for failing to raise certain issues in appellant’s appeal from his

conviction. Having reviewed our own records, we see that a direct appeal of appellant’s

conviction was disposed of on its merits by this Court by our opinion of August 29, 2007, in which we affirmed his conviction.1 See McDonald v. State, No. 07-06-00276-CR,

2007 Tex. App. LEXIS 7139 (Tex. App.—Amarillo Aug. 29, 2007, pet. ref’d) (mem. op.,

not designated for publication).2 The Texas Court of Criminal Appeals refused

McDonald’s petition for discretionary review. See In re Trimble, No. PD-1435-07, 2008

Tex. Crim. App. LEXIS 45 (Tex. Crim. App. Jan. 16, 2008) (decision without published

opinion). Subsequently, our mandate issued May 15, 2008. This Court’s plenary power

expired sixty days after judgment. See TEX. R. APP. P. 19.1(a).

Despite having received appellate review of his conviction, appellant has

continued to urge ineffective assistance of counsel and has continued to seek additional

review of this same conviction. In December 2011, he attempted to perfect another

appeal from his conviction. See McDonald v. State, No. 07-11-00491-CR, 2011 Tex.

App. LEXIS 9941 (Tex. App.—Amarillo Dec. 16, 2011, no pet.) (mem. op., not

designated for publication). By our opinion in that case, we dismissed his appeal,

having concluded that we were without jurisdiction over it. See id. Appellant persisted

and, one year later, in December 2012, attempted to file another notice of appeal, this

time by way of his “Application for a Certificate of Appealability.” See McDonald v.

State, No. 07-12-00512-CR, 2012 Tex. App. LEXIS 10190 (Tex. App.—Amarillo Dec. 7,

2012, no pet.) (mem. op., not designated for publication). We again concluded that we

1 The issues raised in appellant’s direct appeal include the factual sufficiency of the evidence and the trial court’s admission of extraneous bad acts. Appellant’s instant notice of appeal indicates that these issues were not raised by appellate counsel. 2 Because McDonald’s first notice of appeal from his 2001 conviction was untimely, we had to dismiss his original appeal on that basis. See Trimble v. State, No. 07-02-00101-CR, 2002 Tex. App. LEXIS 1656 (Tex. App.—Amarillo March 4, 2002, no pet.) (per curiam). The Texas Court of Criminal Appeals granted McDonald an out-of-time appeal. See Ex parte McDonald, No. AP-75,435, 2006 Tex. Crim. App. Unpub. LEXIS 723 (Tex. Crim. App. June 14, 2006) (per curiam) (not designated for publication).

2 were without jurisdiction over the appeal and, accordingly, dismissed it. See id. Then,

in April 2013, appellant attempted to file another notice of appeal, this time entitled

“Direct Appeal.” See McDonald v. State, 401 S.W.3d 360 (Tex. App.—Amarillo 2013,

pet. ref’d). Again, we dismissed his appeal on the basis that we were without

jurisdiction over it. See id. at 363. Further, by this most recent opinion, we directed

appellant “to refrain from filing additional direct appeals from trial court cause number

2000-434,614.” Id. Though each of appellant’s pro se submissions to this Court has

been labeled differently, the substance of appellant’s submissions has been the same:

he alleges ineffective assistance of counsel in connection with his conviction in trial

court cause number 2000-434,614. In the instant appeal, we reiterate our conclusion

that we are without jurisdiction to entertain this appeal from the same 2001 conviction

and, accordingly, we will dismiss this appeal for want of jurisdiction. See TEX. R. APP. P.

43.2(f); see also Coleman v. State, No. 03-11-00648-CR, 2011 Tex. App. LEXIS 9653,

at *2 (Tex. App.—Austin Dec. 8, 2011, no pet.) (mem. op., not designated for

publication) (observing that an appellant is not entitled to a second appeal from the

same conviction).

In response to appellant’s multiple attempts to file subsequent appeals from the

same 2001 judgment of conviction in trial court cause number 2000-434,612, one which

has already been the subject of a direct appeal and petition for discretionary review, we

admonish appellant against filing another notice of appeal in this Court in which he

lodges a direct, substantive attack against the trial court’s judgment of conviction in

2000-434,612. Based on our repeated disposition of his attempted subsequent

appeals, appellant’s persistence suggests that he does not genuinely pursue appellate

3 review of his conviction—he has received such—and that he, instead, has engaged in

bad faith abuse of the judicial process by repeatedly seeking a remedy to which he is

not entitled.

Pursuant to this Court’s inherent power to control its docket, we hereby direct

appellant to refrain from filing additional direct appeals from trial court cause number

2000-434,612. See Brager v. State, No. 0365-03, 2004 Tex. Crim. App. LEXIS 2203, at

*5 (Tex. Crim. App. Oct. 13, 2004) (en banc) (not designated for publication); see also

TEX. R. APP. P. 43.6. Having concluded, as we have on three earlier occasions, that we

lack jurisdiction over this matter, we dismiss this appeal for want of jurisdiction. See

Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).

Mackey K. Hancock Justice

Do not publish.