Gary Wayne Barnes Sr. v. State

Opinion

DISMISS and Opinion Filed April 8, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01101-CR No. 05-19-01102-CR No. 05-20-00256-CR No. 05-20-00260-CR GARY WAYNE BARNES SR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause Nos. F81-01105-J, F81-01027-J, F81-02518-J & F80-16530-J

MEMORANDUM OPINION Before Chief Justice Burns, Justice Myers, and Justice Pedersen, III Opinion by Chief Justice Burns Gary Wayne Barnes Sr. was convicted in 1981 of three aggravated rapes (05-

19-01101-CR, 05-19-01102-CR & 05-20-00260-CR) and burglary of a habitation

(05-20-00256-CR) and sentenced to life in prison for each offense. Ex parte Barnes,

No. WR-12,658-22, 2018 WL 1835556, *1 (Tex. Crim. App. Apr. 18, 2018). Those

convictions were affirmed on direct appeal. Barnes v. State, No. 05-81-00639-CR

(Tex. App.—Dallas Aug. 31, 1982, no pet.) (not designated for publication). On August 13, 2019, appellant filed a notice of appeal, referencing DNA

testing and the trial court’s findings of fact and conclusions of law in trial court cause

numbers F81-01105-J and F81-01027-J. The Dallas County District Clerk filed the

notice of appeal and forwarded it to this Court where appellant’s cases were assigned

appellate numbers 05-19-01101-CR and 05-19-01102-CR. Months later, appellant

filed a document referring to four trial court cause numbers. Trial court cause

numbers F81-02518-J and F80-16530-J were then assigned appellate numbers 05-

20-00256-CR and 05-20-00260-CR. Thereafter, the clerk’s records were filed in all

four cases. After reviewing the clerk’s records, we conclude we lack jurisdiction

over these appeals.

In a criminal case, the right to appeal is “a substantive right determined solely

within the province of the Legislature.” Ex parte McGregor, 145 S.W.3d 824, 825

(Tex. App.—Dallas 2004, no pet.); see Bayless v. State, 91 S.W.3d 801, 805 (Tex.

Crim. App. 2002) (“defendant’s right to appeal is a statutorily created right”). The

code of criminal procedure provides that “[a] defendant in any criminal action has

the right to appeal under the rules hereinafter prescribed.” TEX. CODE CRIM. PROC.

ANN. art. 44.02. Appellate courts do not have jurisdiction over criminal appeals

where that jurisdiction has not been expressly granted to them. See Apolinar v. State,

820 S.W.2d 792, 794 (Tex. Crim. App. 1991); Wright v. State, 969 S.W.2d 588, 589

(Tex. App.—Dallas 1998, no pet.).

–2– Generally, a criminal defendant’s right to appeal is limited to appeals from

final judgments. See State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App.

1990); Wright, 969 S.W.2d at 589. In non-death penalty cases, appellate courts have

jurisdiction to consider appeals of unfavorable findings from a Chapter 64 hearing

on postconviction forensic DNA testing appeals. Whitfiled v. State, 430 S.W.3d 405,

409 (Tex. Crim. App. 2014); see TEX. CODE CRIM. PROC. ANN. art. 64.01-.05.

However, only the Texas Court of Criminal Appeals possesses “the authority to

grant relief in a post-conviction habeas corpus proceeding where there is a final

felony conviction.” Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115,

117 (Tex. Crim. App. 2013); Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim.

App. 1985); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3.

In his August 2019 notice of appeal, appellant referenced DNA test results but

did not inform the Court that those tests were performed pursuant to appellant’s

applications for article 11.07 writs of habeas corpus which were pending at the Texas

Court of Criminal Appeals. That court’s website shows that appellant filed

applications for writs of habeas corpus alleging newly discovered evidence of actual

innocence on February 28, 2018. In its response, the State recommended that a

factual investigation be conducted to determine the merit, if any, of appellant’s

claims. By order dated April 18, 2018, the court of criminal appeals remanded the

cases to the trial court for an evidentiary investigation. The court ordered

supplemental transcripts “containing all affidavits and interrogatories, or the –3– transcription of the court reporter’s notes be filed along with the trial court’s findings

of fact and conclusions of law.” The investigation culminated in a hearing before a

writ master in the summer of 2019. On August 6, 2019, the trial court made findings

of fact and conclusions of law, including that (1) the DNA testing did not yield any

exculpatory results and (2) had these results been available during the trial of these

offense, it is not reasonably probable that appellant would not have been convicted.

Appellant then filed his notice of appeal in this Court.

The DNA testing appellant seeks to appeal was ordered in response to

appellant’s article 11.07 applications for writ of habeas corpus. Thus, the Texas

Court of Criminal Appeals has sole jurisdiction over the matter.

Because we lack jurisdiction, we dismiss these appeals.

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 191101F.U05

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

GARY WAYNE BARNES SR., On Appeal from the Criminal District Appellant Court No. 3, Dallas County, Texas Trial Court Cause No. F81-01105-J. No. 05-19-01101-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Pedersen, THE STATE OF TEXAS, Appellee III participating.

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

Judgment entered April 8, 2020

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

GARY WAYNE BARNES SR., On Appeal from the Criminal District Appellant Court No. 3, Dallas County, Texas Trial Court Cause No. F81-01027-J. No. 05-19-01102-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Pedersen, THE STATE OF TEXAS, Appellee III participating.

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

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

GARY WAYNE BARNES SR., On Appeal from the Criminal District Appellant Court No. 3, Dallas County, Texas Trial Court Cause No. F81-02518-J. No. 05-20-00256-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Pedersen, THE STATE OF TEXAS, Appellee III participating.

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

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

GARY WAYNE BARNES SR., On Appeal from the Criminal District Appellant Court No. 3, Dallas County, Texas Trial Court Cause No. F80-16530-J. No. 05-20-00260-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Pedersen, THE STATE OF TEXAS, Appellee III participating.

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

–8–