Michael Kennedy v. State ( 2008 )

NO. 12-08-00338-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL KENNEDY, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Appellant Michael Kennedy filed a notice of appeal from a judgment of conviction for
burglary, a felony. See TEX . PENAL CODE ANN . § 30.02(c), (d) (Vernon 2003). Included in his
notice of appeal is a request for an out of time appeal.
The Texas Court of Criminal Appeals is the only court with jurisdiction to consider a request
for an out of time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim.
App.1991). Moreover, on April 18, 1985, in our cause number 12-84-0138-CR, we issued an
opinion affirming the judgment Appellant attempts to appeal. That judgment became final after the
court of criminal appeals denied Appellant’s petition for review. We issued our mandate on
August 5, 1985. Texas Code of Criminal Procedure, article 11.07 provides that a challenge to a final
felony conviction, in a case in which the death penalty is not imposed, must be by an application for
writ of habeas corpus, returnable to the court of criminal appeals. TEX . CODE CRIM . PROC. ANN . art.
11.07 (Vernon Supp. 2008); Bd. of Pardons & Paroles ex rel. Keene v. Eighth Court of Appeals,
910 S.W.2d 481, 483 (Tex. Crim. App. 1995). Courts of appeals do not have jurisdiction in such
matters. See TEX . GOV ’T CODE ANN . § 22.221(d) (Vernon 2004). Accordingly, this appeal and
Appellant’s request for an out of time appeal are dismissed.
Opinion delivered September 3, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
2