Opinion
NO. 01-16-00738-CR
02-16-2017
LEXTER KENNON KOSSIE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 306769
MEMORANDUM OPINION
Lexter Kossie pleaded guilty to and was convicted of attempted capital murder in 1980. After his release from prison, he was convicted, in 1994, of aggravated robbery and received a life sentence. In 2016, Kossie filed a motion in the first trial court seeking leave to file an out-of-time notice of appeal of the attempted-capital-murder conviction. He argued that the trial court lacked jurisdiction to convict him of the earlier offense and that, without that conviction, he would not have received a life sentence for the second offense. The trial court denied his motion.
In a single issue, he contends that the trial court erred by denying him leave to pursue a late appeal because the issue he seeks to raise is jurisdictional and jurisdictional challenges "may be raised at any time."
We dismiss for lack of jurisdiction.
Lack of Jurisdiction
Under the rules of appellate procedure, a criminal defendant has between 30 and 90 days to file a notice of appeal. TEX. R. APP. P. 26.2(a). An appellate court may extend the deadline if the defendant, among other things, files a conforming motion for an extension of time within 15 days after the deadline to file the notice of appeal. See TEX. R. APP. P. 26.3. In general, when a criminal defendant misses both deadlines, intermediate appellate courts lack jurisdiction over the appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). But intermediate appellate courts may obtain jurisdiction after those deadlines have passed if the 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 grant of out-of-time appeal "restores the pendency of the direct appeal").
To obtain that result, the criminal defendant files an application for a writ of habeas corpus with the clerk of the convicting court. See In re Escareno, 297 S.W.3d 288, 289 (Tex. Crim. App. 2009). The application is then transmitted to the Court of Criminal Appeals, which has sole jurisdiction to grant the relief of an out-of-time appeal. See TEX. CODE CRIM. PROC. 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 following that procedure, Kossie has filed a motion with the trial court, after appellate deadlines have passed and he has completed his sentence, requesting it to authorize an out-of-time appeal. 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); Jones v. State, 900 S.W.2d 421, 422 (Tex. App.—Texarkana 1995, no pet.) ("Any action by a trial judge to act on a request for an extension of time to file a notice of appeal would have been a nullity."); see also Bartee v. State, No. 10-07-00150-CR, 2007 WL 1559219, at *1 & n.1 (Tex. App.—Waco May 30, 2007, 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 Court of Criminal Appeals under Article 11.07).
Without a timely notice of appeal, a timely and conforming motion for an extension of time to pursue an appeal, or an order from the Court of Criminal Appeals granting Kossie the ability to pursue an out-of-time appeal, we lack jurisdiction to hear this appeal. See Portley v. State, 89 S.W.3d 188, 189-90 (Tex. App.—Texarkana 2002, no pet.); see also Taylor v. State, Nos. 01-10-00502-CR, 01-10-00503-CR, 2010 WL 3833970, at *1 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010, no pet.) (mem. op., not designated for publication).
Conclusion
We dismiss the appeal for lack of jurisdiction.
Harvey Brown
Justice Panel consists of Justices Massengale, Brown, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).