Charles Lee Hess v. The State of Texas--Appeal from 108th District Court of Potter County
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NO. 07-11-00359-CR; 07-11-00360-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 26, 2011
CHARLES LEE HESS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 56,304-E, 57,241-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Charles Lee Hess filed notices of appeal on September 13, 2011, in an
attempt to appeal his convictions for injury to an elderly individual and burglary of a
habitation and the resulting sentences. Appellant was sentenced for both convictions in
May 2009. He appealed the judgment in cause number 57,241-E, the injury to an
elderly individual conviction, to this Court in June 2009.
On July 15, 2009, we
dismissed his appeal because the certification of appellant’s right to appeal stated
appellant had waived the right of appeal.1 Hess v. State, No. 07-09-0199-CR, 2009
Tex.App. LEXIS 5422 (Tex.App.—Amarillo July 15, 2009, no pet.) (order). By his
September 2011 filings, appellant now seeks to appeal the judgments in cause number
57,241-E, and the burglary conviction, 56,304-E. We will dismiss his appeals.
Appellant’s attempted appeal of cause number 57,241-E must be dismissed for
at least two reasons.
First, as noted, we previously considered and dismissed
appellant’s appeal of cause number 57,241-E, because the trial court certified appellant
waived the right of appeal. Our mandate in that appeal was issued in October 2009.
Appellant provides us no basis for our consideration of a second direct appeal of the
same judgment. See Tex. R. App. P. 19 (plenary power of courts of appeals). Second,
even if we were to consider a second appeal, we have no amended certification
indicating appellant has the right of appeal, so this attempted appeal also would require
dismissal for that reason. Tex. R. App. P. 25.2(d).
As to appellant’s attempted appeal of the judgment in cause number 56,304-E,
the rules of appellate procedure require notice of appeal to be filed within thirty days of
the date sentence is announced in open court, or within ninety days of that date if a
timely motion for new trial is filed. Tex. R. App. P. 26.2. Regardless whether the thirtyday or ninety-day deadline applied, appellant’s notice of appeal is untimely because
more than two years have expired since his May 2009 sentencing. If an appeal of a
criminal conviction is not timely perfected, a court of appeals does not obtain jurisdiction
1
By letter, we afforded appellant the opportunity to provide us with an amended
certification indicating his right of appeal. No amended certification was filed. Tex. R.
App. P. 25.2(d).
2
to address the merits of the appeal and can take no action other than to dismiss the
appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State, 918
S.W.2d 519. 522 (Tex.Crim.App. 1996).2
For those reasons, appellant’s appeals in both cases are dismissed.
James T. Campbell
Justice
Do not publish.
2
An out-of-time appeal may be requested by way of application for a postconviction writ of habeas corpus addressed to the Texas Court of Criminal Appeals.
Tex. Code Crim. Proc. Ann. art. 11.07 (West 2011).
3
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