Robert Joseph Schmitt v. State ( 2019 )

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
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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.
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