Cecil McDonald v. The State of Texas--Appeal from 364th District Court of Lubbock County (majority)

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NO. 07-12-00512-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A DECEMBER 7, 2012 CECIL MCDONALD, A/K/A CECIL TRIMBLE, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2000-434,614; HONORABLE BRADLEY S. UNDERWOOD, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Cecil McDonald, filed an Application for a Certificate of Appealability with the trial court on November 26, 2012. In this application, appellant seeks to appeal his 2001 conviction for murder on the basis that he received ineffective assistance of counsel. 1 The direct appeal of the trial court s 2001 judgment was resolved by this Court s opinion and judgment of August 29, 2007. See McDonald v. State, No. 07-060276-CR, 2007 Tex.App. LEXIS 7139 (Tex.App. Amarillo Aug. 29, 2007, pet. ref d). 1 Because appellant s application expresses his desire to appeal this 2001 judgment, we have construed the application to be a notice of appeal. See TEX. R. APP. P. 25.2(c)(2). Following denial of appellant s petition for discretionary review by the Texas Court of Criminal Appeals, see In re Trimble, No. PD-1435-07, 2008 Tex.Crim.App. 45 (Tex.Crim.App. Jan. 16, 2008) (decision without published opinion), mandate was issued on May 15, 2008. This Court s plenary power expired 60 days after judgment. TEX. R. APP. P. 19.1(a). As a result, this Court does not have jurisdiction over appellant s attempted appeal. Because this Court is without plenary power over this appeal, no further action may be taken by this Court in this proceeding and the appeal is hereby dismissed. Mackey K. Hancock Justice Do not publish. 2