Robert Joseph Schmitt v. State

• Court: Court of Appeals of Texas
• Decided: March 26, 2019
• Docket: 05-19-00333-CR
• Status: Published

Opinion

DISMISS and Opinion Filed March 26, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00333-CR

ROBERT JOSEPH SCHMITT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81160-00

MEMORANDUM OPINION Before Chief Justice Burns, Justice Myers, and Justice Pedersen, III Opinion by Chief Justice Burns After finding Robert Joseph Schmitt guilty of two counts of aggravated sexual assault of a

child, the jury assessed punishment at twenty years in prison for each conviction. The trial court

ordered that the two terms run cumulatively for a total for forty years in prison. On direct appeal,

appellant raised twenty-three issues, none of which challenged his cumulated sentence. See Schmitt

v. State, No. 12-01-00306-CR, 2003 WL 22411210 (Tex. App.—Tyler Oct. 22, 2003, no pet.)

(mem. op., not designated for publication). After filing several habeas applications, appellant filed

a motion for judgment nunc pro tunc which the trial court granted, deeming the cumulated

sentences “illegal and unauthorized by law.” State v. Schmitt, No. PD‒0594‒11, 2012 WL

3996813, *1 (Tex. Crim. App. Sept. 12, 2012) (not designated for publication). The trial court

then ordered appellant’s sentences to run concurrently. Id. When the State appealed, this Court vacated the judgment nunc pro tunc and reinstated the original sentences because the trial court’s

judgment nunc pro tunc “acted to change a judicial determination, rather than correct a clerical

error.” Id. The Texas Court of Criminal Appeals affirmed this Court. Id. at *4.

The Court now has before it appellant’s March 20, 2019 “Motion for Out-of-Time

Rehearing” and “Notice of Appeal.” In these documents, appellant does not reference any new

appealable orders but instead claims he is granting us jurisdiction to address the illegal cumulation

of his sentences.

An appellate court has jurisdiction to determine an appeal only if the appeal is authorized

by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008). When the appellate

court’s jurisdiction is not legally invoked, the court has no power to act. See Olivo v. State, 918

S.W.2d 519, 523 (Tex. Crim. App. 1996). Here, there is no new judgment or appealable order.

To the extent appellant challenges his original sentence or this Court’s prior ruling on the trial

court’s judgment nunc pro tunc, his complaint is untimely. See TEX. R. APP. P. 26.2. Furthermore,

he raises his complaint in the improper forum. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (2015);

In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding)

(“Article 11.07 contains no role for the courts of appeals; the only courts referred to are the

convicting court and the Court of Criminal Appeals.”).

Because we lack jurisdiction, we dismiss the appeal.

/Robert D. Burns, III/ ROBERT D. BURNS, III Do Not Publish CHIEF JUSTICE TEX. R. APP. P. 47.2(b) 190333f.u05

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

ROBERT JOSEPH SCHMITT, Appellant On Appeal from the 296th Judicial District Court, Collin County, Texas No. 05-19-00333-CR V. Trial Court Cause No. 296-81160-00. Opinion delivered by Chief Justice Burns, THE STATE OF TEXAS, Appellee Justices Myers and Pedersen, III participating.

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

Judgment entered March 26, 2019.

–3–