Frederick Leamon Grayson v. State

• Court: Court of Appeals of Texas
• Decided: October 23, 2019
• Docket: 03-19-00596-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00596-CR

Frederick Leamon Grayson, Appellant

v.

The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 51591, THE HONORABLE RICK MORRIS, JUDGE PRESIDING

MEMORANDUM OPINION

In cause number 51591, appellant Frederick Leamon Grayson was convicted by a

jury of aggravated assault with a deadly weapon, see Tex. Penal Code § 22.02(a)(2), and

sentenced to life in prison, see id. § 12.42(b). On direct appeal, this Court affirmed appellant’s

conviction. See Grayson v. State, 82 S.W.3d 357 (Tex. App.—Austin 2001, no pet.). The

mandate affirming the trial court’s judgment of conviction was issued on May 10, 2002.

On August 27, 2019, this Court received appellant’s pro se “Notice of Out of

Time Appeal for Illegal Sentence,” expressing his intent to “attack[ ] an illegal conviction” in

cause number 51591. Appellant has already appealed this conviction, and mandate has issued.

He is not entitled to a second appeal of this conviction. See Hines v. State, 70 S.W. 955, 957

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

conviction in any case.”). In his notice of appeal, appellant maintains that an illegal conviction is a “void

conviction” that “may be collaterally attacked at any time without regard to any time

constraints”; thus, he seeks an out-of-time appeal.1 Even if appellant were entitled to a second

appeal, this Court does not have jurisdiction to grant an out-of-time appeal; only the Court of

Criminal Appeals has jurisdiction to grant an out-of-time appeal. Coleman v. State,

No. 03-11-00648-CR, 2011 WL 6118604, at *1 (Tex. App.—Austin Dec. 8, 2011, no pet.)

(mem. op., not designated for publication); see Tex. Code Crim. Proc. art. 11.07, § 5 (vesting

complete jurisdiction over post-conviction relief from final felony convictions in Court of

Criminal Appeals); Fletcher v. State, 214 S.W.3d 5, 6 (Tex. Crim. App. 2007) (recognizing well-

settled law that appealed conviction is “a final conviction” when conviction is affirmed by

appellate court and that court’s mandate of affirmance becomes final); Ater v. Eighth Court of

Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding) (affirming that Court

of Criminal Appeals is “the only court with jurisdiction in final post-conviction

felony proceedings.”).

This Court lacks jurisdiction to consider a second appeal from appellant’s final

conviction or to grant an out-of-time appeal. See Coleman, 2011 WL 6118604, at *1.

Accordingly, we dismiss this appeal for want of jurisdiction. See, e.g., McDonald v. State,

401 S.W.3d 360, 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);

Bartee v. State, No. 10-07-00150-CR, 2007 WL 1559219, at *1 & n.1 (Tex. App.—Waco

1 In his notice of appeal, appellant acknowledges that the appellate deadlines for perfecting appeal from his conviction have passed. See Tex. R. App. P. 26.2(a) (requiring defendant to file notice of appeal within thirty or ninety days after day trial court imposes sentence in open court). He does not acknowledge his previous appeal. 2 May 30, 2007, no pet.) (mem. op., not designated for publication) (dismissing appeal for want of

jurisdiction because intermediate appellate court did not have jurisdiction to grant out-of-

time appeal).

__________________________________________ Edward Smith, Justice

Before Chief Justice Rose, Justices Triana and Smith

Dismissed for Want of Jurisdiction

Filed: October 23, 2019

Do Not Publish