Charles Claude Carlton v. State ( 2014 )

Opinion issued January 28, 2014.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00700-CR
NO. 01-13-00701-CR
NO. 01-13-00702-CR
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CHARLES CLAUDE CARLTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case Nos. 868139, 868140, and 873521
MEMORANDUM OPINION
Appellant, Charles Claude Carlton, attempts to appeal from his January 18,
2002 felony convictions for robbery and aggravated robbery.1 We dismiss the
appeals for want of jurisdiction.
On January 18, 2002, the district court signed judgments of conviction and
assessed Carlton’s punishment at confinement for thirty-five years, with the
sentences to run concurrently. Carlton timely appealed. The appeals were assigned
to this Court but transferred to the Sixth Court of Appeals. That court dismissed
Carlton’s appeals for want of jurisdiction, concluding that he waived his right to
appeal as part of a plea agreement to cap his punishment and did not receive
permission to appeal. See Carlton v. State, 91 S.W.3d 363, 364 (Tex. App.—
Texarkana 2002, no pet.). The court of appeals issued the mandates on December
9, 2002. Nevertheless, on May 28 and August 1, 2013, Carlton filed a document
titled “Proper Notice of Appeal and Request for Appointment of Counsel” in each
trial court proceeding. The notice states that he “appeals with the court’s
permission the unfulfillment of expert psychiatric testimony, raised by written
motion and granted before entry of the pleas, but not provided in the punishment
hearing.”
We lack jurisdiction over Carlton’s attempted appeals. We cannot exercise
jurisdiction over an appeal without a timely filed notice of appeal. See TEX. R. APP.
1
See TEX. PENAL CODE ANN. §§ 29.02, 29.03 (West 2011).
2
P. 26.2(a); 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 time for
perfecting an appeal from a judgment of conviction begins to run on the day that
sentence is imposed or suspended in open court. TEX. R. APP. P. 26.2(a); see Lair v.
State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
Here, the trial court imposed sentence on January 18, 2002. Carlton’s notices of
appeal, filed on May 28 and August 1, 2013, were untimely.
Carlton seeks to circumvent the rule 26 deadlines by reliance on Texas Rule
of Appellate Procedure 2, which authorizes an appellate court to suspend the
operation of an appellate rule for good cause.2 See TEX. R. APP. P. 2. Rule 2,
however, does not authorize the suspension of the time limit for perfecting an
appeal in a criminal case. Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523;
see also Coronado v. State, No. 14-02-00827-CR, 2003 WL 22996910, at *2 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2003, no pet.) (mem. op., not designated for
publication). Because Carlton’s notices of appeal were untimely, we have no basis
for jurisdiction over these appeals. See Slaton, 981 S.W.2d at 210; Olivo, 918
S.W.2d at 523.
2
The clerk’s records filed with this Court include a “Motion to Advance Original Notice of
Appeal” and “Motion For Leave to File Out-of-Time Amended Notice of Appeal:
Showing Good Cause,” which Carlton attached to the May 28, 2013 Proper Notice of
Appeal filed in the trial court. In the motions to advance and for leave, Carlton contends
that he has established good cause to allow an out-of-time notice of appeal or amended
notice of appeal.
3
Further, only the Texas Court of Criminal Appeals has jurisdiction in final
post-conviction felony proceedings, which are governed by Article 11.07 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07
(West Supp. 2013); see also Olivo, 918 S.W.2d at 525 n.8; Bd. of Pardons &
Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483
(Tex. Crim. App. 1995); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.—Houston
[1st Dist.] 2001, orig. proceeding). “Courts of appeals have no jurisdiction over
post-conviction writs of habeas corpus in felony cases. Article 11.07 contains no
role for the courts of appeals.” In re Briscoe, 230 S.W.3d 196, 196 (Tex. App.—
Houston [14th Dist.] 2006, orig. proceeding) (internal citations omitted). Because
Carlton’s convictions for the felony offenses of aggravated robbery and robbery
became final in 2002, we have no jurisdiction over this appeal.
Accordingly, we dismiss the appeals for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
4