Donald Ray McCray v. State
05-15-00371-CR
Tex. App.Mar 26, 2015Background
- Donald Ray McCray was convicted of murder and sentenced to 35 years in 1992; this Court affirmed on direct appeal in McCray v. State, 861 S.W.2d 40.
- On March 24, 2015 McCray (pro se) filed a notice of appeal in this Court challenging his 1992 conviction.
- McCray did not identify any new appealable order entered in 2015; he complained the former presiding judge had not ruled on his motion for permission to appeal the 1992 conviction.
- The appealability question centered on whether the Court had jurisdiction to entertain an appeal related to a 1992 conviction more than two decades later.
- The Court examined appellate jurisdiction principles and the timeliness requirements for criminal appeals.
- The Court concluded McCray’s notice was untimely as to the 1992 conviction and that no other appealable order invoked the Court’s jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction over McCray’s 2015 notice seeking review of his 1992 conviction | McCray contends he may appeal because the former presiding judge is refusing to rule on his motion for permission to appeal the 1992 conviction | The State (and the Court) contend there is no new appealable order; the 1992 appeal period is long expired and no jurisdictional basis exists | The Court dismissed the appeal for want of jurisdiction — the notice was untimely and no appealable order was presented |
Key Cases Cited
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (discussing the nature and invocation of appellate jurisdiction)
- Blanton v. State, 369 S.W.3d 984 (Tex. Crim. App. 2012) (appeal must be authorized by law)
- Abbott v. State, 271 S.W.3d 694 (Tex. Crim. App. 2008) (standard for determining appellate jurisdiction)
- McKinney v. State, 207 S.W.3d 366 (Tex. Crim. App. 2006) (appeals by criminal defendants follow conviction or appealable order)
- Griffin v. State, 145 S.W.3d 645 (Tex. Crim. App. 2004) (same)
- Wright v. State, 969 S.W.2d 588 (Tex. App.––Dallas 1998) (intermediate appellate courts lack jurisdiction over nonappealable matters)
- Ex parte Apolinar, 820 S.W.2d 729 (Tex. Crim. App. 1991) (no jurisdiction to review interlocutory orders absent express authority)
- Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (timeliness requirements for criminal appellate notices)
- McCray v. State, 861 S.W.2d 40 (Tex. App.––Dallas 1993) (prior affirmance of McCray’s 1992 conviction)