Opinion
No. 07-13-00438-CR
01-17-2014
CECIL R. MCDONALD, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2000-434,614, Honorable Bradley S. Underwood, Presiding
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Cecil R. McDonald a/k/a Cecil Trimble, has filed Notice of Appeal in this Court again seeking to appeal from his conviction for murder in trial court cause number 2000-434,614. In his notice of appeal, he maintains that his appellate counsel was ineffective for failing to raise certain issues in appellant's appeal from his conviction. Having reviewed our own records, we see that a direct appeal of appellant's conviction was disposed of on its merits by this Court by our opinion of August 29, 2007, in which we affirmed his conviction. See McDonald v. State, No. 07-06-00276-CR, 2007 Tex. App. LEXIS 7139 (Tex. App.—Amarillo Aug. 29, 2007, pet. ref'd) (mem. op., not designated for publication). The Texas Court of Criminal Appeals refused McDonald's petition for discretionary review. See In re Trimble, No. PD-1435-07, 2008 Tex. Crim. App. LEXIS 45 (Tex. Crim. App. Jan. 16, 2008) (decision without published opinion). Subsequently, our mandate issued May 15, 2008. This Court's plenary power expired sixty days after judgment. See TEX. R. APP. P. 19.1(a).
The issues raised in appellant's direct appeal include the factual sufficiency of the evidence and the trial court's admission of extraneous bad acts. Appellant's instant notice of appeal indicates that these issues were not raised by appellate counsel.
Because McDonald's first notice of appeal from his 2001 conviction was untimely, we had to dismiss his original appeal on that basis. See Trimble v. State, No. 07-02-00101-CR, 2002 Tex. App. LEXIS 1656 (Tex. App.—Amarillo March 4, 2002, no pet.) (per curiam). The Texas Court of Criminal Appeals granted McDonald an out-of-time appeal. See Ex parte McDonald, No. AP-75,435, 2006 Tex. Crim. App. Unpub. LEXIS 723 (Tex. Crim. App. June 14, 2006) (per curiam) (not designated for publication).
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Despite having received appellate review of his conviction, appellant has continued to urge ineffective assistance of counsel and has continued to seek additional review of this same conviction. In December 2011, he attempted to perfect another appeal from his conviction. See McDonald v. State, No. 07-11-00491-CR, 2011 Tex. App. LEXIS 9941 (Tex. App.—Amarillo Dec. 16, 2011, no pet.) (mem. op., not designated for publication). By our opinion in that case, we dismissed his appeal, having concluded that we were without jurisdiction over it. See id. Appellant persisted and, one year later, in December 2012, attempted to file another notice of appeal, this time by way of his "Application for a Certificate of Appealability." See McDonald v. State, No. 07-12-00512-CR, 2012 Tex. App. LEXIS 10190 (Tex. App.—Amarillo Dec. 7, 2012, no pet.) (mem. op., not designated for publication). We again concluded that we were without jurisdiction over the appeal and, accordingly, dismissed it. See id. Then, in April 2013, appellant attempted to file another notice of appeal, this time entitled "Direct Appeal." See McDonald v. State, 401 S.W.3d 360 (Tex. App.—Amarillo 2013, pet. ref'd). Again, we dismissed his appeal on the basis that we were without jurisdiction over it. See id. at 363. Further, by this most recent opinion, we directed appellant "to refrain from filing additional direct appeals from trial court cause number 2000-434,614." Id. Though each of appellant's pro se submissions to this Court has been labeled differently, the substance of appellant's submissions has been the same: he alleges ineffective assistance of counsel in connection with his conviction in trial court cause number 2000-434,614. In the instant appeal, we reiterate our conclusion that we are without jurisdiction to entertain this appeal from the same 2001 conviction and, accordingly, we will dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f); see also Coleman v. State, No. 03-11-00648-CR, 2011 Tex. App. LEXIS 9653, at *2 (Tex. App.—Austin Dec. 8, 2011, no pet.) (mem. op., not designated for publication) (observing that an appellant is not entitled to a second appeal from the same conviction).
In response to appellant's multiple attempts to file subsequent appeals from the same 2001 judgment of conviction in trial court cause number 2000-434,612, one which has already been the subject of a direct appeal and petition for discretionary review, we admonish appellant against filing another notice of appeal in this Court in which he lodges a direct, substantive attack against the trial court's judgment of conviction in 2000-434,612. Based on our repeated disposition of his attempted subsequent appeals, appellant's persistence suggests that he does not genuinely pursue appellate review of his conviction—he has received such—and that he, instead, has engaged in bad faith abuse of the judicial process by repeatedly seeking a remedy to which he is not entitled.
Pursuant to this Court's inherent power to control its docket, we hereby direct appellant to refrain from filing additional direct appeals from trial court cause number 2000-434,612. See Brager v. State, No. 0365-03, 2004 Tex. Crim. App. LEXIS 2203, at *5 (Tex. Crim. App. Oct. 13, 2004) (en banc) (not designated for publication); see also TEX. R. APP. P. 43.6. Having concluded, as we have on three earlier occasions, that we lack jurisdiction over this matter, we dismiss this appeal for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).
Mackey K. Hancock
Justice
Do not publish.