John Roger Leyhe v. State

• Court: Court of Appeals of Texas
• Decided: January 14, 2021
• Docket: 02-20-00154-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-20-00154-CR ___________________________

JOHN ROGER LEYHE, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1273530D

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

John Roger Leyhe, proceeding pro se, has filed a “Petition for Out-of-Time

Appeal,” asking for permission to file an out-of-time appeal from his April 11, 2013

first-degree felony conviction for aggravated assault of a family member with a deadly

weapon.1 See Tex. Penal Code Ann. § 22.02(b)(1).

We do not have jurisdiction over matters related to postconviction relief from

an otherwise final felony conviction. See Ater v. Eighth Court of Appeals, 802 S.W.2d

241, 243 (Tex. Crim. App. 1991) (orig. proceeding); see also Tex. Code Crim. Proc.

Ann. art. 11.07; Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth

Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (orig. proceeding). We thus

notified Leyhe of our concern that we lack jurisdiction over this appeal. We warned

him that we could dismiss this appeal for want of jurisdiction unless he or any party

wanting to continue the appeal filed a response by November 20, 2020, showing

grounds for continuing the appeal. See Tex. R. App. P. 44.3. Leyhe requested an

extension of time to file a response. We granted his request and extended his response

deadline to December 8, 2020. Despite this extension, we have not received a

response.

The exclusive postconviction remedy from a final felony conviction is through

a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure.

1 Leyhe originally filed his petition with the Tarrant County District Clerk, who forwarded it to us.

2 See Tex. Code Crim. Proc. Ann. art. 11.07; Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex.

Crim. App. 1996). As we stated in our letter to Leyhe, his avenue for seeking an out-

of-time appeal is filing an Article 11.07 habeas application with the Tarrant County

District Clerk’s Office; we do not have jurisdiction to consider Leyhe’s request for an

out-of-time appeal. See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(b); Ex parte

Williams, 239 S.W.3d 859, 861 (Tex. App.—Austin 2007, no pet.) (explaining that an

Article 11.07 habeas application is filed in the district court but that the district court

does not decide the merits of the application; instead, it determines whether there are

unresolved fact issues, makes any necessary fact findings, and forwards the record to

the Texas Court of Criminal Appeals for a final ruling on the application); see also Ater,

802 S.W.2d at 243 (stating that the Texas Court of Criminal Appeals is “the only court

with jurisdiction in final post-conviction felony proceedings”); Tarver v. State, No. 02-

12-00447-CR, 2012 WL 5356308, at *1 (Tex. App.—Fort Worth Nov. 1, 2012, no

pet.) (per curiam) (mem. op., not designated for publication) (“The remedy for a

defendant with a final felony conviction who seeks an out-of-time appeal is by way of

post-conviction writ of habeas corpus under article 11.07 of the code of criminal

procedure.”).

3 Because we are without jurisdiction to consider Leyhe’s petition for an out-of-

time appeal, we dismiss this appeal for want of jurisdiction.2 See Tex. R. App. P.

43.2(f).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: January 14, 2021

Leyhe’s petition included a “Motion for Appointment of Appellate Counsel.” 2

We deny the motion.