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Court of Appeals of Texas, Tyler.


NO. 12-17-00146-CR, NO. 12-17-00147-CR, NO. 12-17-00148-CR

Decided: June 30, 2017

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


Tracy Ray Gibson filed a motion for rehearing of our May 31, 2017 opinion. We overrule the motion for rehearing, withdraw our opinion of May 31, 2017, and substitute the following opinion in its place.

In 2007, Tracy Ray Gibson pleaded guilty to aggravated robbery, possession of a firearm by a felon, and theft. See Gibson v. State, Nos. 12-12-00403-CR, 12-12-00404-CR, 12-12-00405-CR, 2012 WL 6030752 (Tex. App.—Tyler Dec. 5, 2012, no pet.) (mem. op., not designated for publication). He appealed the convictions, but because the appeals were untimely, this Court dismissed for want of jurisdiction. See id. The court of criminal appeals subsequently granted Appellant's application for writ of habeas corpus. See Ex parte Gibson, No. WR-68,962-01, 2016 WL 8715906 (Tex. Crim. App. Jan. 13, 2016) (not designated for publication).

Thereafter, Appellant reached a new plea agreement and the trial court imposed sentence on April 5, 2016. Appellant untimely appealed; thus, this Court again dismissed the appeals for want of jurisdiction in October 2016. See Gibson v. State, Nos. 12-16-00267-CR, 12-16-00268-CR, 12-16-00269-CR, 2016 WL 5930157 (Tex. App.—Tyler Oct. 12, 2016, pet. ref'd) (mem. op., not designated for publication). Our mandate issued on March 13, 2017, after which Appellant again filed a notice of appeal in all three trial court cause numbers.

On May 12, 2017, this Court notified Appellant that his notice of appeal in the three cases failed to show the jurisdiction of this Court, i.e., there is no new final judgment or appealable order contained therein. See TEX. R. APP. P. 19.1, 26.2(a)(1), 51.2. We further notified Appellant that the appeals would be dismissed unless the information was amended on or before June 12 to show the jurisdiction of this Court. On May 22, Appellant responded that (1) the court of criminal appeals granted him a new trial in January 2016, (2) he reached a new plea agreement, and (3) he is entitled to appeal from the 2016 judgment.

Appellant has already appealed from the 2016 judgment and, as previously stated, we dismissed for want of jurisdiction because the appeals were untimely filed. See Gibson, 2016 WL 5930157. Appellant's notice of appeal indicates his belief that his conviction was not final until our mandate issued on March 13, 2017. However, the rules of appellate procedure required Appellant to file his notice of appeal within thirty days after sentence is imposed or within ninety days after that date if a motion for new trial is filed. See TEX. R. APP. P. 26.2(a). This he did not do. See id. Once this Court's mandate issued and was received by the trial court clerk, it must be enforced. See TEX. R. APP. P. 51.2.

In his motion for rehearing, Appellant contends that he filed a “motion to dismiss or withdraw indictment” on May 30, 2017, which the trial court denied on June 5. He maintains that the denial constitutes an appealable order over which this Court has jurisdiction. This Court lacks jurisdiction to address the post-conviction denial of a motion to dismiss an indictment. See Simms v. State, No. 01-15-00763-CR, 2015 WL 6081467, at *1 (Tex. App.—Houston [1st Dist.] Oct. 13, 2015, no pet.) (mem. op., not designated for publication). Further review rests with the court of criminal appeals. See TEX. R. APP. P. 68.1; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).

Appellant also requests that this Court grant him an extension to perfect his appeal. This request essentially seeks an out of time appeal, which this Court is not authorized to do. See Ater, 802 S.W.2d at 243; 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. h.) (mem. op., not designated for publication). Accordingly, we dismiss these appeals for want of jurisdiction.