in Re James H. Stone, Sr. , 2000 Tex. App. LEXIS 6463 ( 2000 )

In re James H Stone Sr.

  IN THE

TENTH COURT OF APPEALS

No. 10-00-287-CV

IN RE JAMES H. STONE, SR.

Original Proceeding

MEMORANDUM OPINION

      A jury convicted James H. Stone, Sr. of aggravated robbery, a felony, and sentenced him to 99 years in prison. He contends that the trial court signed an order granting a new trial in 1997, but has not acted upon that order. Stone remains in prison. He requests that this Court grant his application for writ of mandamus and order the respondent to act on its previous order granting a new trial.

      Once before, Stone asked this Court to do something we cannot do. In 1998, he appealed the trial court’s denial of his writ of habeas corpus on this same issue. Then, we told Stone that the avenue for relief from the trial court’s denial of his application was through the Court of Criminal Appeals and not this Court. Ex parte Stone, No. 10-98-00017-CR (Tex. App.—Waco March 18, 1998, no pet. h.) (not designated for publication). At this time, we do not know whether Stone ever asked the Court of Criminal Appeals to review the habeas denial.

      Again, we must tell Stone that we cannot grant the relief he requests. He has been convicted of a felony, and it is a final conviction. Stone v. State, 931 S.W.2d 394 (Tex. App.—Waco 1996, pet. ref’d). Only the Court of Criminal Appeals has jurisdiction to grant post conviction relief from an otherwise final felony conviction. Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995); Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993). See also Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim. App. 1994). Article 11.07 provides the means to submit a post conviction challenge to the Court of Criminal Appeals. Tex. Code Crim. Proc. art. 11.07 (Vernon Supp. 2000). Any action by this Court would be void and of no force and effect. Id. art. 11.07 § 5.

      Because we do not have jurisdiction to act on Stone’s mandamus, we deny the writ.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Writ denied

Opinion delivered and filed September 20, 2000

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uilty of the unlawful delivery of a controlled substance, namely, cocaine, and on February 21, 1994, the trial court, following Prince's plea of true to two enhancement paragraphs, sentenced him to life imprisonment in the Texas Department of Criminal Justice-Institutional Division. Tex. Health & Safety Code Ann. §§ 481.001 et seq. (Vernon 1992 & Supp. 1997); Tex. Penal Code Ann. § 12.42 (Vernon 1994 & Supp. 1997). The record filed in this cause reveals that a motion for new trial was filed by Prince's trial counsel on March 18, 1994, but that by failing to file a notice of appeal counsel neglected to perfect the appeal.

            Prince subsequently brought a post-conviction petition for a writ of habeas corpus in the Court of Criminal Appeals, contending that his counsel had rendered ineffective assistance by failing to perfect his appeal. In an opinion delivered November 6, 1996, the Court of Criminal Appeals agreed and allowed Prince an out-of-time appeal. In the opinion, the Court of Criminal Appeals further provided that Prince, should he desire to prosecute an appeal, must "take affirmative steps to see that notice of appeal is given within thirty days after the mandate . . . has issued." The court's mandate was issued on November 22, 1996. Prince filed a notice of appeal in the trial court on January 7, 1997.

            A timely notice of appeal is necessary to invoke a court of appeal's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The Court of Criminal Appeals in its opinion granting Prince an out-of-time appeal allowed him until December 23, 1996, to file a notice of appeal. The notice of appeal he filed on January 7, 1997, was filed fifteen days too late.

            Provision is made in the appellate rules for the untimely filing of a notice of appeal. Rule 41(b)(2) provides that "[a]n extension of time for filing notice of appeal may be granted by the court of appeals if such notice is filed within fifteen days after the last day allowed and within the same period a motion is filed in the court of appeals reasonably explaining the need for such extension." Id. 41(b)(2). The fifteen days following the date Prince's notice of appeal was due passed without him requesting an extension of time in which to file a notice of appeal.

            On March 5, 1997, we gave notice to Prince that we may dismiss his appeal for want of jurisdiction unless within ten days he provided sufficient grounds for continuing it. In a letter received by this court on March 10, 1997, but dated March 3, Prince's counsel, who was appointed on January 7, 1997, stated his opinion that this court lacks jurisdiction over the appeal. Counsel also stated that he did not learn until after January 7, 1997, either that a notice of appeal had been filed on January 7 or that he had been appointed that same day to represent Prince on appeal.

            Prince's notice of appeal was untimely, and he failed to file a motion to extend the time in which to file a notice of appeal. Therefore, this appeal was not timely perfected, and we dismiss it for want of jurisdiction. See Olivo, 918 S.W.2d at 522.

                                                                       PER CURIAM

Before Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed March 26, 1997

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