Jeffrey Michael McDonald v. State

Opinion

Opinion issued May 9, 2013

In The Court of Appeals For The First District of Texas

NO. 01-13-00305-CR ____________

JEFFREY MICHAEL MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 963695

MEMORANDUM OPINION

Appellant, Jeffrey Michael McDonald, proceeding pro se, attempts to appeal

the trial court’s determination that his “Post-Conviction Motion for a New Trial”

was not timely filed. We dismiss the appeal. Pursuant to a plea bargain agreement with the State, appellant entered a plea

of guilty and was convicted of the felony offense of aggravated sexual assault of a

child. The judgment and sentence, 17 years confinement, were entered on February

24, 2004. The trial court certified that this was a plea bargain case, and appellant

had no right of appeal.

More than nine years later, on March 6, 2013, appellant filed a “Post-

Conviction Motion for a New Trial,” asserting that there was new evidence showing

that he had not committed the offense. The trial court made a hand-written notation

on the motion “Not timely filed 3-6-13,” and the district clerk sent appellant a

notice that the trial court had determined that the motion was not timely filed.

Appellant appeals the trial court’s determination that the motion was not timely

filed.

Article 11.07 provides the exclusive means to challenge a final felony

conviction, including with claims of actual innocence based on newly discovered

evidence. See TEX. CODE. CRIM. PROC. ANN. art. 11.07, § 5 (West Supp. 2011)

(providing that “[a]fter conviction, the procedure outlined in this Act shall be

exclusive and any other proceeding shall be void and of no force and effect in

discharging the prisoner”); Ex parte Brown, 205 S.W.3d 538, 544 (Tex. Crim. App.

2006); Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex.

2 Crim. App. 1995). “Article 11.07 contains no role for the courts of appeals.” In re

Briscoe, 230 S.W.3d 196, 196 (Tex. App.—Houston [1st Dist.] 2006, orig.

proceeding) (internal citations omitted); see TEX. CODE. CRIM. PROC. ANN. art.

11.07. Only the Texas Court of Criminal Appeals has jurisdiction over matters

related to post-conviction relief from a final felony conviction. TEX. CODE. CRIM.

PROC. ANN. art. 11.07; Ater v. Eighth Court of Appeals, 802 S. W.2d 241, 243 (Tex.

Crim. App. 1991); see In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st

Dist.] 2001, orig. proceeding). To complain about an action or inaction of the trial

court in a post-conviction felony proceeding, an appellant “may seek mandamus

relief from the Court of Criminal Appeals.” Briscoe, 230 S.W.3d at 196–97;

McAfee, 53 S.W.3d at 717.

Here, appellant’s felony conviction was final on February 24, 2004, and

appellant is attempting to appeal from the trial court’s determination refusing post-

conviction relief. We have no jurisdiction over such an appeal. See TEX. CODE.

CRIM. PROC. ANN. art. 11.07; Ater, 802 at 243; McAfee, 53 S.W.3d at 717.

Accordingly, we DISMISS this appeal for want of jurisdiction. We dismiss

all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Brown, and Huddle.

3 Do not publish. TEX. R. APP. P. 47.2(b).