Michael A. Burnette v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Michael A. Burnette

Appellant

Vs.                   No. 11-05-00047-CR -- Appeal from Harris County

State of Texas

Appellee

The jury convicted Michael A. Burnette of murder and assessed his punishment at confinement for 25 years.  The trial court imposed the sentence in open court on February 25, 2000. The conviction was affirmed in an unpublished opinion, Michael A. Burnette v. State, No. 01-00-00403-CR (Tex.App. - Houston [1st Dist.] 2001, pet=n ref=d). Mandate issued on January 30, 2002. On November 29, 2004, appellant filed a pro se notice of appeal challenging the same murder conviction and attempting to perfect the present appeal.  We dismiss for want of jurisdiction.

This appeal was originally docketed in the First Court of Appeals as Cause No. 01-04-01305-CR. Pursuant to the Texas Supreme Court=s authority to equalize the dockets of the 14 intermediate appellate courts, this case was transferred to this court as our Cause No. 11-05-00047-CR.  TEX. GOV=T CODE ANN. ' 73.001 (Vernon 2005). 

This court received the clerk=s record, appellant=s pro se brief, appellant=s pro se motion to suspend TEX.R.APP.P. 9.3(a)(1)(C),^[1] and a motion for extension of time in which to file appellant=s pro se brief.  After examining the clerk=s record, this court notified the parties that it appeared his 2000 conviction had been affirmed and that mandate had issued.  Therefore, our letter stated that this court did not have jurisdiction over the appeal and requested that appellant respond showing grounds for continuing this appeal.

Appellant has responded to our request with a letter dated March 8, 2005.  In his letter, appellant discusses the motions pending in this court.  In his last paragraph, appellant addresses the issue of jurisdiction by stating:

Appellant=s brief was sent by U.S. Mail, certified on or about the 31st day of January 2005, to the 1st Court of Appeals.  In the appearance of the proper attempt to appeal, the 1st Court of Appeals had the jurisdiction in this case.  Their jurisdiction extended to the filing of the Appellant=s brief.  This brief was timely filed, Tex. R. App. P. 38.6(a)(2). In Court of Appeals Number: 01-04-01305-CR.

Appellant correctly states that his brief was received in the First Court; however, he fails to address our concerns that this is his second direct appeal from his 2000 conviction for murder.

Appellant has already challenged his 2000 conviction for murder in a direct appeal. A second direct appeal is not authorized by law.  Therefore, this court lacks jurisdiction to consider this appeal.

The appeal is dismissed.

PER CURIAM

March 17, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]TEX.R.APP.P. 9.3(a)(1)(C) provides that parties must file an original plus five copies of a brief.