Andrew Pete v. State

Dismissed and Opinion Filed June 21, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00573-CR
No. 05-18-00574-CR
No. 05-18-00575-CR
ANDREW PETE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F12-33559-V, F12-33560-V & F12-33561-V
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Whitehill
Opinion by Justice Francis
Andrew Pete was convicted of three aggravated sexual assaults of a child younger than
fourteen years of age and, on November 15, 2017, the trial court assessed punishment at eight
years in prison for each offense. In May 2018, appellant filed a motion for out-of-time appeals in
the trial court. By order dated May 11, 2018, the trial court denied his motion, stating that it lacked
jurisdiction to grant appellant the relief he requested. Appellant’s notices of appeal were filed in
this Court on May 17, 2018.
When a criminal defendant misses the deadline to file a notice of appeal following
conviction, intermediate appellate courts lack jurisdiction over the appeal. Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Intermediate appellate courts may obtain jurisdiction
after those deadlines have passed only if the Texas Court of Criminal Appeals grants the defendant
the ability to pursue an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241,
243 (Tex. Crim. App. 1991) (orig. proceeding); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997) (explaining that granting an out-of-time appeal “restores the pendency of the direct
appeal”). To be entitled to an out-of-time appeal, the defendant must file an application for a writ
of habeas corpus with the clerk of the convicting court. In re Escareno, 297 S.W.3d 288, 289
(Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3, 5 (West 2015). The
application is then transmitted to the Texas Court of Criminal Appeals, which has sole jurisdiction
to grant the relief of an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §§ 1, 3,
5; Ater, 802 S.W.2d at 243 (“We are the only court with jurisdiction in final post-conviction felony
proceedings.”).
Instead of filing an application for writ of habeas corpus under article 11.07, appellant filed
a motion with the trial court, requesting that it authorize out-of-time appeals. He now appeals the
denial of that motion. Neither the trial court nor this Court has jurisdiction to grant the relief he
requests. See Ashorn v. State, 77 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—
Houston [1st Dist.] Feb. 16, 2017, no pet.) (mem. op., not designated for publication) (stating that
intermediate appellate court does not have jurisdiction to grant out-of-time appeal, which must be
sought through post-conviction habeas application made returnable to Texas Court of Criminal
Appeals under article 11.07).
We dismiss these appeals for want of jurisdiction.
/Molly Francis/
MOLLY FRANCIS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
180573F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW PETE, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-18-00573-CR V. Trial Court Cause No. F12-33559-V.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered June 21, 2018.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW PETE, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-18-00574-CR V. Trial Court Cause No. F12-33560-V.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered June 21, 2018.
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW PETE, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-18-00575-CR V. Trial Court Cause No. F12-33561-V.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices Fillmore and Whitehill
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered June 21, 2018.
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