Ex Parte Gary Layne Smith v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 22, 2024
• Docket: 10-24-00251-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-24-00251-CR

EX PARTE GARY LAYNE SMITH

Original Proceeding

From the 66th District Court Hill County, Texas Trial Court No. 39,230

MEMORANDUM OPINION

Gary Layne Smith pled guilty to the felony offense of unlawful possession of a

controlled substance, morphine, in an amount greater than one gram but less than four

grams. See TEX. HEALTH & SAFETY CODE § 481.115(c). Pursuant to a plea bargain, the trial

court deferred adjudication of guilt and placed Smith on community supervision for five

years. Subsequently, the State filed an application to adjudicate guilt, and after a hearing,

the trial court found all but three of the allegations contained in the State’s application to

be true. The trial court found Smith guilty and sentenced him to seven years and six

months in prison.

A majority of this Court modified the judgment to delete two restitution amounts

and affirmed his conviction on August 31, 2021. Smith v. State, 640 S.W.3d 885 (Tex. App.—Waco 2021, pet. ref'd) overruled in part by Shircliff v. State, 654 S.W.3d 788 (Tex.

App.—Waco 2022, no pet.). The Court of Criminal Appeals refused Smith’s petition for

discretionary review on April 20, 2022. We then issued our mandate on May 31, 2022.

Smith has now sent this Court, two years after his conviction became final, a

“Petition to Modify Sentence,” filed on August 13, 2024, requesting that we “terminate[]

execution of [his] sentence in the Interest of Justice, and issue[] an Order to Vacate

Judgment.” Smith contends he became an “Honorary Consul” in January of 2021 and

declares “Consular Immunity.” He also asserts that he has been appointed as an

Honorary Consul by “King Devile Pentland II” of an undesignated country or jurisdiction

and has also been appointed to the International Human Rights Commission by “Judge,

Prof. Rafal Wasile,” also of an undesignated country or jurisdiction. Smith alleges that

he has immediate obligations to meet for the United States that conflict with his original

sentence, thus necessitating the request to vacate the trial court’s judgment.

Smith’s petition is a post-conviction attack on an otherwise final felony judgment

of conviction. This Court has no jurisdiction to grant post-conviction relief in an attack

on a final felony conviction. See TEX. CRIM. PROC. arts. 11.07; 11.05; Ater v. Eighth Court of

Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) ("[The Court of Criminal Appeals is]

the only court with jurisdiction in final post-conviction felony proceedings.").

Accordingly, this proceeding is dismissed.

TOM GRAY Chief Justice

Ex parte Smith Page 2 Before Chief Justice Gray, Justice Johnson, and Justice Smith Petition dismissed Opinion delivered and filed August 22, 2024 Do not publish [OT06]

Ex parte Smith Page 3