Joe Frederick v. State ( 2019 )

NOS. 12-19-00253-CR
12-19-00254-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOE FREDERICK, § APPEALS FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Joe Frederick, acting pro se, appeals from his felony convictions for aggravated sexual
assault of a child in trial court cause numbers 007-80374-97 and 007-80375-97. 1 Under the rules
of appellate procedure, the notice of appeal must be filed within thirty days after the sentence is
imposed or suspended in open court, or after the day the trial court enters an appealable order; or
within ninety days if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a).
Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be filed
within fifteen days after the deadline for filing the notice of appeal. TEX. R. APP. P. 26.3. In this
case, sentence was imposed on September 10, 1999, in both cases. Appellant filed his notice of
1
On June 13, 2001, the Texas Court of Criminal Appeals denied Appellant’s application for writ of habeas
corpus, without written order. See Ex parte Frederick, No. 48,155-01 (Tex. Crim. App. June 13, 2001). The Court
of Criminal Appeals also denied or dismissed subsequent habeas applications. See Ex parte Frederick, No. 48,155-
02 (Tex. Crim. App. May 20, 2009); Ex parte Frederick, No. 48,155-03 (Tex. Crim. App. March 31, 2010); Ex parte
Frederick, No. 48,155-04 (Tex. Crim. App. March 31, 2010); Ex parte Frederick, No. 48,155-05 (Tex. Crim. App.
November 22, 2017); Ex parte Frederick, No. 48,155-06 (Tex. Crim. App. November 22, 2017); Ex parte Frederick,
No. 48,155-07 (Tex. Crim. App. July 18, 2018); Ex parte Frederick, No. 48,155-08 (Tex. Crim. App. July 18, 2018).
On February 8, 2019, the Texas Supreme Court denied Appellant’s petition for writ of mandamus. See In re
Frederick, No. 18-0942 (Tex. Feb. 8, 2019).
appeal on July 12, 2019, long after the time for filing a notice of appeal under Rule 26.2(a) or for
seeking a motion to extend under Rule 26.3.
On July 17, this Court notified Appellant that the information received failed to show the
jurisdiction of the Court, i.e., there was no notice of appeal filed within the time allowed by the
rules of appellate procedure and no timely motion for an extension of time to file the notice of
appeal. See TEX. R. APP. P. 26.2, 26.3. We informed Appellant that the appeals would be
dismissed unless the information was amended on or before July 29 to show this Court’s
jurisdiction. In response, Appellant explains that he filed a “Motion for Court to Take Judicial
Notice Pursuant to Texas Rules of Court, Rule 201” on grounds that the trial court used an ex post
facto law to convict him, but the trial court refused to rule on the motion. He maintains that the
indictments are void and the trial court lacked jurisdiction, making his convictions void.
“[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted
only when they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 330 S.W.3d
904, 915 (Tex. Crim. App. 2011). This Court is not authorized to extend the time for perfecting
an appeal except as provided by the Texas Rules of Appellate Procedure. 2 See TEX. R. APP. P.
26.2, 26.3; see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The exclusive post-conviction remedy in final
felony convictions in Texas courts is through a writ of habeas corpus under Article 11.07 of the
Texas Code of Criminal Procedure. Olivo, 918 S.W.2d at 525 n. 8; Collins v. State, 257 S.W.3d
816, 817 (Tex. App.—Texarkana 2008, no pet.). Accordingly, we dismiss Appellant’s appeals for
want of jurisdiction. See TEX. R. APP. P. 43.2(f). All pending motions are overruled as moot.
Opinion delivered September 4, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2
Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth Court
of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL
631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for publication)
(dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without permission from
court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 4, 2019
NO. 12-19-00253-CR
JOE FREDERICK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-80374-97)
THIS CAUSE came on to be heard on the appellate record, and the same being
considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the
appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 4, 2019
NO. 12-19-00254-CR
JOE FREDERICK,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-80375-97)
THIS CAUSE came on to be heard on the appellate record, and the same being
considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the
appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.