Gary Wayne Barnes Sr. v. State ( 2020 )

DISMISS and Opinion Filed April 8, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01101-CR
No. 05-19-01102-CR
No. 05-20-00256-CR
No. 05-20-00260-CR
GARY WAYNE BARNES SR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F81-01105-J, F81-01027-J, F81-02518-J
& F80-16530-J
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Myers, and Justice Pedersen, III
Opinion by Chief Justice Burns
Gary Wayne Barnes Sr. was convicted in 1981 of three aggravated rapes (05-
19-01101-CR, 05-19-01102-CR & 05-20-00260-CR) and burglary of a habitation
(05-20-00256-CR) and sentenced to life in prison for each offense. Ex parte Barnes,
No. WR-12,658-22, 2018 WL 1835556, *1 (Tex. Crim. App. Apr. 18, 2018). Those
convictions were affirmed on direct appeal. Barnes v. State, No. 05-81-00639-CR
(Tex. App.—Dallas Aug. 31, 1982, no pet.) (not designated for publication).
On August 13, 2019, appellant filed a notice of appeal, referencing DNA
testing and the trial court’s findings of fact and conclusions of law in trial court cause
numbers F81-01105-J and F81-01027-J. The Dallas County District Clerk filed the
notice of appeal and forwarded it to this Court where appellant’s cases were assigned
appellate numbers 05-19-01101-CR and 05-19-01102-CR. Months later, appellant
filed a document referring to four trial court cause numbers. Trial court cause
numbers F81-02518-J and F80-16530-J were then assigned appellate numbers 05-
20-00256-CR and 05-20-00260-CR. Thereafter, the clerk’s records were filed in all
four cases. After reviewing the clerk’s records, we conclude we lack jurisdiction
over these appeals.
In a criminal case, the right to appeal is “a substantive right determined solely
within the province of the Legislature.” Ex parte McGregor, 145 S.W.3d 824, 825
(Tex. App.—Dallas 2004, no pet.); see Bayless v. State, 91 S.W.3d 801, 805 (Tex.
Crim. App. 2002) (“defendant’s right to appeal is a statutorily created right”). The
code of criminal procedure provides that “[a] defendant in any criminal action has
the right to appeal under the rules hereinafter prescribed.” TEX. CODE CRIM. PROC.
ANN. art. 44.02. Appellate courts do not have jurisdiction over criminal appeals
where that jurisdiction has not been expressly granted to them. See Apolinar v. State,
820 S.W.2d 792, 794 (Tex. Crim. App. 1991); Wright v. State, 969 S.W.2d 588, 589
(Tex. App.—Dallas 1998, no pet.).
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Generally, a criminal defendant’s right to appeal is limited to appeals from
final judgments. See State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App.
1990); Wright, 969 S.W.2d at 589. In non-death penalty cases, appellate courts have
jurisdiction to consider appeals of unfavorable findings from a Chapter 64 hearing
on postconviction forensic DNA testing appeals. Whitfiled v. State, 430 S.W.3d 405,
409 (Tex. Crim. App. 2014); see TEX. CODE CRIM. PROC. ANN. art. 64.01-.05.
However, only the Texas Court of Criminal Appeals possesses “the authority to
grant relief in a post-conviction habeas corpus proceeding where there is a final
felony conviction.” Padieu v. Court of Appeals of Tex., Fifth Dist., 392 S.W.3d 115,
117 (Tex. Crim. App. 2013); Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim.
App. 1985); see TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3.
In his August 2019 notice of appeal, appellant referenced DNA test results but
did not inform the Court that those tests were performed pursuant to appellant’s
applications for article 11.07 writs of habeas corpus which were pending at the Texas
Court of Criminal Appeals. That court’s website shows that appellant filed
applications for writs of habeas corpus alleging newly discovered evidence of actual
innocence on February 28, 2018. In its response, the State recommended that a
factual investigation be conducted to determine the merit, if any, of appellant’s
claims. By order dated April 18, 2018, the court of criminal appeals remanded the
cases to the trial court for an evidentiary investigation. The court ordered
supplemental transcripts “containing all affidavits and interrogatories, or the
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transcription of the court reporter’s notes be filed along with the trial court’s findings
of fact and conclusions of law.” The investigation culminated in a hearing before a
writ master in the summer of 2019. On August 6, 2019, the trial court made findings
of fact and conclusions of law, including that (1) the DNA testing did not yield any
exculpatory results and (2) had these results been available during the trial of these
offense, it is not reasonably probable that appellant would not have been convicted.
Appellant then filed his notice of appeal in this Court.
The DNA testing appellant seeks to appeal was ordered in response to
appellant’s article 11.07 applications for writ of habeas corpus. Thus, the Texas
Court of Criminal Appeals has sole jurisdiction over the matter.
Because we lack jurisdiction, we dismiss these appeals.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
191101F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GARY WAYNE BARNES SR., On Appeal from the Criminal District
Appellant Court No. 3, Dallas County, Texas
Trial Court Cause No. F81-01105-J.
No. 05-19-01101-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Pedersen,
THE STATE OF TEXAS, Appellee III participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered April 8, 2020
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GARY WAYNE BARNES SR., On Appeal from the Criminal District
Appellant Court No. 3, Dallas County, Texas
Trial Court Cause No. F81-01027-J.
No. 05-19-01102-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Pedersen,
THE STATE OF TEXAS, Appellee III participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered April 8, 2020
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GARY WAYNE BARNES SR., On Appeal from the Criminal District
Appellant Court No. 3, Dallas County, Texas
Trial Court Cause No. F81-02518-J.
No. 05-20-00256-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Pedersen,
THE STATE OF TEXAS, Appellee III participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered April 8, 2020
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GARY WAYNE BARNES SR., On Appeal from the Criminal District
Appellant Court No. 3, Dallas County, Texas
Trial Court Cause No. F80-16530-J.
No. 05-20-00260-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Pedersen,
THE STATE OF TEXAS, Appellee III participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered April 8, 2020
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