                                                                                  ACCEPTED
                                                                             07-14-00296-CR
                                                                 SEVENTH COURT OF APPEALS
                                                                          AMARILLO, TEXAS
                                                                        1/6/2015 11:19:11 PM
                                                                           Vivian Long, Clerk


                       NO. 07-14-00296-CR

                             IN THE                         FILED IN
                                                     7th COURT OF APPEALS
                       COURT OF APPEALS                AMARILLO, TEXAS
                  SEVENTH JUDICIAL DISTRICT          1/6/2015 11:19:11 PM
                        AMARILLO, TEXAS                   VIVIAN LONG
                _________________________________            CLERK


                     FRANK DWIGHT CARTER
                                V.
                      THE STATE OF TEXAS
                _________________________________

          ON APPEAL FROM THE 364TH DISTRICT COURT
                 OF LUBBOCK COUNTY, TEXAS
                     CAUSE NO. 89-409,752
               _________________________________

                      BRIEF FOR THE STATE
                _________________________________

                                   MATTHEW D. POWELL
                                   Criminal District Attorney
                                   Lubbock County, Texas

                                   TRAVIS S. WARE
                                   JODY HALL
                                   Assistant Criminal District Attorneys
                                   (Trial Attorneys)

ORAL ARGUMENT NOT REQUESTED JEFFREY S. FORD
                            Assistant Criminal District Attorney
                            Lubbock County, Texas
                            State Bar No. 24047280
                            P.O. Box 10536, Lubbock, TX 79408
                            Phone (806)775-1100
                            FAX: (806)775-7930
                            E-mail: JFord@co.lubbock.tx.us
                            (On Appeal)
                            ATTORNEY FOR THE STATE
                         Identity of Parties and Counsel

Appellant:

       Frank Dwight Carter

Appellant’s counsel on motion to set aside judgment & appellate counsel:

       Frank Dwight Carter (pro se), 8500 Drury Lane, St. Louis, MO 63147;
       phone (314)438-0920

State of Texas:

At trial:

       Travis S. Ware and Jody Hall, Assistant Criminal District Attorneys,
       Lubbock County Criminal District Attorney’s Office, P.O. Box 10536,
       Lubbock, Texas 79408; phone (806)775-1100; fax (806)775-7930

On appeal:

       Jeffrey S. Ford, Assistant Criminal District Attorney, Lubbock County
       Criminal District Attorney’s Office, P.O. Box 10536, Lubbock, Texas
       79408; phone (806)775-1100; fax (806)775-7930

Trial Judge:

       Honorable Thomas L. Clinton, Presiding Judge, 99th District Court of
       Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite
       332, Lubbock, TX 79401

Judge on motion to set aside judgment:

       Honorable Brad Underwood, Presiding Judge, 364th District Court of
       Lubbock County, Texas, Lubbock County Courthouse, 904 Broadway, Suite
       320, Lubbock, TX 79401


                                        i
                                                Table of Contents
                                                                                                               PAGE

Identity of Parties and Counsel ...................................................................................i

Table of Contents ...................................................................................................... ii

Table of Authorities ..................................................................................................iv

Statement of the Case............................................................................................. viii

Statement of the Facts ................................................................................................ 1

Summary of the Argument..................................................................................... …2

Argument and Authorities……………………………………………………….....4

First Issue Presented (Responsive to Appellant’s First and Second Issues):

Appellant argues via two issues that the trial court erred in dismissing his motion

to set aside judgment because the trial court had jurisdiction to determine that the

conviction was and is “void.” The Court lacks jurisdiction to hear the attempted

appeal because there is no specific statutory authorization for an appeal from the

denial of a post-conviction motion to set aside the judgment. Likewise, the trial

court lacked jurisdiction to take any action in the case (other than to dismiss the

motion for want of jurisdiction) because Appellant sought relief that could only be

obtained via a post-conviction Article 11.07 application for writ of habeas corpus.

Even if the Court does have jurisdiction over this attempted appeal and could

consider the merits of the claims in Appellant’s motion, however, Appellant’s
                                                            ii
claims lack merit because the dismissal of an indictment does not prevent a grand

jury from returning a subsequent indictment charging the same offense. Does the

Court have jurisdiction to hear the attempted appeal of the denial of Appellant’s

requested post-conviction relief?…………………………………………………...4

         Discussion…………………………………………………………………...4

          Does the Court have jurisdiction to consider the merits of this appeal?.......5

         Did the trial court have jurisdiction to decide the merits of the motion?.......8

         Is Appellant’s conviction void due to dismissal of Cause No. 89-409,601?.10

Conclusion and Prayer ............................................................................................. 13

Certificate of Service ............................................................................................... 14

Certificate of Compliance…………………………………………………………14




                                                           iii
                             Table of Authorities

TEXAS CASE LAW                                                         PAGE

Abbott v. State, 271 S.W.3d 694 (Tex. Crim. App. 2008)……………………….5, 6

State v. Aguilera, 165 S.W.3d 695 (Tex. Crim. App. 2005)……………………….9

Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991)……..7, 9

Bean v. State, No. 11-14-00298-CR, 2014 WL 6997809, 2014 Tex. App. LEXIS
13033 (Tex. App.—Eastland Dec. 4, 2014, no pet.) (not designated for
publication)…………………………………………………………………………8

Carter v. State, No. 07-90-00252-CR (Tex. App.—Amarillo May 1, 1992, pet.
ref’d)………………………………………………………………………...viii, 1, 6

State v. Davis, 349 S.W.3d 535 (Tex. Crim. App. 2011)…………………………..9

Dewalt v. State, 417 S.W.3d 678 (Tex. App.—Austin 2013, pet. ref’d)…………...6

Ex parte Carter, No. WR-24,583-14, 2007 WL 3010752, 2007 Tex. Crim. App.
Unpub. LEXIS 435 (Tex. Crim. App. Oct. 17, 2007) (not designated for
publication—cited for persuasive purposes only)…………………………….12, 13

Ex parte Carter, No. WR-24,583-15 (Tex. Crim. App. Feb. 25, 2009)…………..12

Ex parte Carter, No. WR-24,583-16 (Tex. Crim. App. Feb. 1, 2012)……………12

Ex parte Williams, 379 S.W.2d 911 (Tex. Crim. App. 1964)…………………….11

Gutierrez v. State, 307 S.W.3d 318 (Tex. Crim. App. 2010)………………………6

Hernandez-Prado v. State, No. 13-10-00513-CR, 2011 WL 1205239, 2011 Tex.
App. LEXIS 2353 (Tex. App.—Corpus Christi Mar. 31, 2011, no pet.) (not
designated for publication)…………………………………………………………8


                                      iv
Hughes v. State, 16 S.W.3d 429 (Tex. App.—Waco 2000, no pet.)……………...11

In re Carter, No. 07-04-0418-CV, 2004 WL 2093375, 2004 Tex. App. LEXIS
8391 (Tex. App.—Amarillo Sept. 20, 2004, no pet.) (not designated for
publication)........................................................................................................11, 12

In re Carter, No. 07-10-00088-CV, 2010 WL 1790779, 2010 Tex. App. LEXIS
3368 (Tex. App.—Amarillo May 5, 2010, no pet.) (not designated for
publication)………………………………………………………………………..12

Kurosky v. State, No. 2-10-00202-CR, 2011 WL 255672, 2011 Tex. App. LEXIS
613 (Tex. App.—Fort Worth Jan. 27, 2011, no pet.) (mem. op. on petition for
discretionary review) (not designated for publication)……………………………8

Leland v. State, No. 08-11-00082-CR, 2011 WL 2565647, 2011 Tex. App. LEXIS
4937 (Tex. App.—El Paso June 29, 2011, no pet.) (not designated for
publication)…………………………………………………………………………8

Lopez v. State, No. 14-10-00094-CR, 2010 WL 454951, 2010 Tex. App. LEXIS
945 (Tex. App.—Houston [14th Dist.] Feb. 11, 2010, no pet.) (not designated for
publication)…………………………………………………………………………8

Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992)……………………………5

Raley v. State, 441 S.W.3d 647 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).8

State v. Sellers, 790 S.W.2d 316 (Tex. Crim. App. 1990)………………………….6

State v. Shelton, 396 S.W.3d 614 (Tex. App.—Amarillo 2012, pet. ref’d)………...9

Skinner v. State, 305 S.W.3d 593 (Tex. Crim. App. 2010)……………………...7, 9

Wolfe v. State, 120 S.W.3d 368 (Tex. Crim. App. 2003)…………………………..5

TEXAS RULES AND STATUTES

TEX. CODE CRIM. PROC. ANN. art. 11.07……………………………………...2, 4, 7

                                                            v
TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(a)………………………………….7, 9

TEX. CODE CRIM. PROC. ANN. art. 12.01(3)(A) (West 1989)……………………..12

TEX. CODE CRIM. PROC. ANN. art. 12.03(d) (West 1989)…………………………12

TEX. CODE CRIM. PROC. ANN. art. 12.05(b) (West 1989)…………………………12

TEX. CODE CRIM. PROC. ANN. art. 32.02………………………………………….11

TEX. CODE CRIM. PROC. ANN. art. 44.02………………………………………...5-7

TEX. CODE CRIM. PROC. ANN. art. 64.05…………………………………………...7

TEX. R. APP. P. 3.2………………………………………………………………...vii

TEX. R. APP. P. 18.1(a)……………………………………………………………...7

TEX. R. APP. P. 19.1………………………………………………………………...7

TEX. R. APP. P. 19.3………………………………………………………………...7

TEX. R. APP. P. 25.2(a)(2)…………………………………………………………..6




                                 vi
                                  NO. 07-14-00296-CR

                                        IN THE
                                  COURT OF APPEALS
                             SEVENTH JUDICIAL DISTRICT
                                   AMARILLO, TEXAS
                           _________________________________

                                FRANK DWIGHT CARTER
                                           V.
                                 THE STATE OF TEXAS
                           _________________________________

                                 BRIEF FOR THE STATE
                           _________________________________



To the Honorable Court of Appeals:

          The State of Texas, the prosecuting authority in Cause No. 89-409,752 in the

99th/364th District Courts of Lubbock County, and Appellee before the Seventh

Court of Appeals, respectfully submits this brief in reply to the brief filed by

Appellant appealing the denial of his motion to set aside judgment. The parties

will be referred to as “Appellant” and “State.”1




1
    TEX. R. APP. P. 3.2.

                                           vii
                              Statement of the Case

      Appellant was charged by indictment on July 7, 1989, in Cause No. 89-

409,752, with two counts of aggravated robbery. (Clerk’s Record (CR) p. 7).

Appellant was convicted of the offense of aggravated robbery on June 12, 1990, in

Cause No. 89-409,752, and given a sentence of life imprisonment the same day.

(CR p. 11). The Court affirmed the conviction on May 1, 1992. Carter v. State,

No. 07-90-00252-CR (Tex. App.—Amarillo May 1, 1992, pet. ref’d).

      Appellant filed a Motion to Set Aside Judgment on July 7, 2014. (CR pp. 4-

5). The Motion was dismissed for want of jurisdiction on July 17, 2014. (CR p.

29). Appellant filed a notice of appeal on July 31, 2014. (CR p. 30).




                                        viii
                                 Statement of Facts

      Appellant was charged by indictment on June 8, 1989, in Cause No. 89-

409,601, with two counts of aggravated robbery. (CR p. 6). After Appellant was

re-indicted, Cause No. 89-409,601 was dismissed by the trial court without

prejudice on July 12, 1989. (CR p. 13) (Supplemental Clerk’s Record (Supp. CR)

p. 23). In particular, the trial court dismissed (without prejudice) Cause No. 89-

409,601 pursuant to the State’s request because “[t]his case was reindicted in

Cause no. 89-409,752 by the 137th District Court Grand Jury on July 7, 1989.”

(Supp. CR p. 23).

      Appellant was re-indicted in Cause No. 89-409,752 on July 7, 1989. He was

again charged with two counts of aggravated robbery (with the exact same

allegations as previously alleged in the 89-409,601 indictment), but with the

addition of a felony enhancement paragraph that was not previously alleged in the

89-409,601 indictment. (CR p. 7). He was convicted of the offense of aggravated

robbery on June 12, 1990, and was given a sentence of life imprisonment the same

day. (CR pp. 11, 15). The Court affirmed the conviction on May 1, 1992. Carter

v. State, No. 07-90-00252-CR (Tex. App.—Amarillo May 1, 1992, pet. ref’d).

      Appellant filed a Motion to Set Aside Judgment on July 7, 2014. (CR pp. 4-

5). In the Motion, Appellant requested that the trial court set aside the judgment in

Cause No. 89-409,752 on grounds that the conviction is null and void “due to the
                                          1
fact this case is/was dismissed by authorization in dismissal order No. 89-409,601

dated 7-12-1989.” (CR p. 4). He argued that the dismissal of Cause No. 89-

409,601 “[was] a voluntary waiver and relinquishment of jurisdiction over the

parties and subject matter.” Id. The Motion was dismissed for want of jurisdiction

on July 17, 2014. (CR p. 29). Appellant filed a notice of appeal on July 31, 2014.

(CR p. 30).




                            Summary of the Argument

      Appellant argues in his two issues that the trial court did have jurisdiction to

consider the merits of his Motion to Set Aside Judgment because his conviction

was “void” from its inception. The Court does not have jurisdiction over the

attempted appeal because there is no specific statutory authorization granting a

right to appeal the dismissal or denial of a post-conviction motion to set aside the

judgment. Likewise, the trial court lacked jurisdiction to take any action (other

than to dismiss the motion for want of jurisdiction) due to the lack of any authority

to consider the post-conviction motion—a motion which requested the type of

relief that can only be obtained via a post-conviction Article 11.07 application for

writ of habeas corpus returnable to the Court of Criminal Appeals.


                                          2
      Furthermore, even if the Court had jurisdiction over the attempted appeal,

Appellant’s claims are entirely lacking in merit. He argues that the conviction and

sentence in the instant cause are void and of no legal effect because the dismissal

of the first indictment (Cause No. 89-409,601) had the effect of constituting a

voluntary waiver and relinquishment of jurisdiction over the parties and subject

matter. But, it is well settled that dismissal of an indictment does not prevent a

grand jury from returning a subsequent indictment charging the same offense. The

89-409,601 dismissal order did not state that the cause was being dismissed “with

prejudice”; therefore, there was no legal reason why a subsequent indictment could

not be returned in the instant cause.




                                         3
                            Arguments and Authorities

                              First Issue Presented
               (Responsive to Appellant’s First and Second Issues)

Appellant argues via two issues that the trial court erred in dismissing his motion

to set aside judgment because the trial court had jurisdiction to determine that the

conviction was and is “void.” The Court lacks jurisdiction to hear the attempted

appeal because there is no specific statutory authorization for an appeal from the

denial of a post-conviction motion to set aside the judgment. Likewise, the trial

court lacked jurisdiction to take any action in the case (other than to dismiss the

motion for want of jurisdiction) because Appellant sought relief that could only be

obtained via a post-conviction Article 11.07 application for writ of habeas corpus.

Even if the Court does have jurisdiction over this attempted appeal and could

consider the merits of the claims in Appellant’s motion, however, Appellant’s

claims lack merit because the dismissal of an indictment does not prevent a grand

jury from returning a subsequent indictment charging the same offense. Does the

Court have jurisdiction to hear the attempted appeal of the denial of Appellant’s

requested post-conviction relief?

                                    Discussion

      Appellant seeks to appeal the denial of his Motion to Set Aside Judgment for

want of jurisdiction. But, he has not shown that the Court has jurisdiction to hear

                                         4
an appeal of the denial of his motion to set aside judgment. Likewise, the trial

court did not have jurisdiction to take any action other than what it did—to dismiss

the motion for want of jurisdiction. But, even if the Court does have jurisdiction to

address the merits of the trial court’s denial of the motion (and assuming the trial

court had jurisdiction to consider the merits of the motion), however, Appellant has

not shown that his conviction is “void” or otherwise invalid due to the return of a

subsequent indictment after a prior indictment had already been issued charging

the same offense.

Does the Court have jurisdiction to consider the merits of this appeal?

      Neither the U.S. nor Texas Constitutions require the state to establish

appellate courts or provide defendants with the right to appellate review of

criminal convictions. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).

Only the Legislature can give a court authority to hear an appeal. See Wolfe v.

State, 120 S.W.3d 368, 372 (Tex. Crim. App. 2003). The standard for determining

appellate jurisdiction is “not whether the appeal is precluded by law, but whether

the appeal is authorized by law.” Abbott v. State, 271 S.W.3d 694, 696-97 (Tex.

Crim. App. 2008).

      The right to appellate review of a criminal conviction is “only as provided

by the legislature.” Phynes, 828 S.W.2d at 2. Article 44.02 of the Code of

Criminal Procedure provides a defendant “in any criminal action” with the right of
                                          5
appeal. TEX. CODE CRIM. PROC. ANN. art. 44.02. But, a defendant’s general right

to appeal under Article 44.02 “‘has always been limited to appeal’ from a ‘final

judgment.’” Abbott, 271 S.W.3d at 697 n. 8 (citing State v. Sellers, 790 S.W.2d

316, 321 n. 4 (Tex. Crim. App. 1990)). A “final judgment” refers to a final

judgment of conviction. See Dewalt v. State, 417 S.W.3d 678, 683-84 (Tex.

App.—Austin 2013, pet. ref’d).

      Appellant is obviously not seeking to appeal his conviction and sentence

since he has already had a direct appeal of his conviction and sentence. See Carter

v. State, No. 07-90-00252-CR. Instead, he is seeking to appeal the trial court’s

dismissal of his Motion to Set Aside Judgment. The only way for this Court to be

vested with jurisdiction over the instant appeal is if the denial of the Motion

constitutes an appealable order, i.e., an appeal that the Legislature has authorized

by law. Abbott, 271 S.W.3d at 696-97; see also TEX. R. APP. P. 25.2(a)(2) (stating

that a criminal defendant has the right to appeal a judgment of guilt or other

appealable order); Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App.

2010) (same). If the order denying the Motion is not considered an appealable

order, then the Court does not have jurisdiction to address the merits of Appellant’s

claims. See Gutierrez, 307 S.W.3d at 321.

      The Order Dismissing for Lack of Jurisdiction cannot be considered an

appealable order that would vest this Court with jurisdiction over the instant
                                          6
appeal. There is no statutory right to appeal the denial of a Motion to Set Aside

Judgment. The general right of a criminal defendant to appeal the conviction does

not apply since Appellant has already availed himself of the opportunity to appeal

his conviction. Since he has already had an appeal of his conviction, there is no

“criminal action” for Article 44.02 purposes since “a ‘criminal action’ no longer

exists after a defendant has been convicted and the direct appeal process from that

conviction has been exhausted.” Skinner v. State, 305 S.W.3d 593, 594 (Tex.

Crim. App. 2010).

      Appellant’s Motion to Set Aside Judgment was a not-so-subtle attempt on

Appellant’s part to get the trial court to grant post-conviction habeas relief. But,

the exclusive post-conviction remedy after final felony convictions in Texas courts

is through a writ of habeas corpus returnable to the Texas Court of Criminal

Appeals, pursuant to Article 11.07 of the Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. art. 11.07 § 3(a); Ater v. Eighth Court of Appeals, 802

S.W.2d 241, 243 (Tex. Crim. App. 1991).          Any jurisdiction that this Court

originally had over Appellant’s appeal has long since expired since appellate

mandate issued (on February 8, 1993). See TEX. R. APP. P. 18.1(a); 19.1; 19.3.

      As an appeal of the dismissal of a post-conviction motion, an appeal would

only be authorized if the Legislature has conferred a right of appeal. Cf. TEX.

CODE CRIM. PROC. ANN. art. 64.05 (granting appellate jurisdiction to review a trial
                                         7
court’s order relating to post-conviction DNA testing).                 Appellant has wholly

failed to identify any authority that provides a right of appeal here.                       Thus,

Appellant’s attempted appeal of the denial of his motion to set aside judgment

should be dismissed for want of jurisdiction since the Legislature has not provided

a right to appeal an order denying the motion to set aside judgment.2

Did the trial court have jurisdiction to decide the merits of the motion?

       A related inquiry to whether the Court has jurisdiction to hear the appeal is

whether the trial court had jurisdiction to decide the merits of the Motion to Set

Aside Judgment. The trial court, of course, found that it “lack[ed] jurisdiction to

2
  See, e.g., Raley v. State, 441 S.W.3d 647, 650-51 (Tex. App.—Houston [1st Dist.] 2014, pet.
ref’d) (determining that the appellate court did not have jurisdiction over the appellant’s
attempted appeal of the trial court’s denial of the motion to withdraw the defendant’s guilty plea
and dismiss the indictment); Bean v. State, No. 11-14-00298-CR, 2014 WL 6997809 at *1, 2014
Tex. App. LEXIS 13033 at *1-2 (Tex. App.—Eastland Dec. 4, 2014, no pet.) (not designated for
publication) (finding that the appellate court did not have jurisdiction over the attempted appeal
of the trial court’s denial of the appellant’s petition to withdraw his plea of guilty); Leland v.
State, No. 08-11-00082-CR, 2011 WL 2565647 at *1-2, 2011 Tex. App. LEXIS 4937 at *1-5
(Tex. App.—El Paso June 29, 2011, no pet.) (not designated for publication) (finding that the
appellate court did not have jurisdiction over the attempted appeal of the trial court’s denial of
the motion to set aside the finding of guilt and dismiss the indictment); Hernandez-Prado v.
State, No. 13-10-00513-CR, 2011 WL 1205239 at *1-2, 2011 Tex. App. LEXIS 2353 at *1-3
(Tex. App.—Corpus Christi Mar. 31, 2011, no pet.) (not designated for publication) (finding that
the appellate court lacked jurisdiction over the appellant’s attempted appeal of the denial of his
motion to withdraw his guilty plea); Kurosky v. State, No. 2-10-00202-CR, 2011 WL 255672 at
*2, 2011 Tex. App. LEXIS 613 at *4 (Tex. App.—Fort Worth Jan. 27, 2011, no pet.) (mem. op.
on petition for discretionary review) (not designated for publication) (finding that the Legislature
has not provided for the appeal of an order denying a motion filed after the expiration of a
defendant’s term of community supervision seeking to set aside the conviction and dismissing
the charges); Lopez v. State, No. 14-10-00094-CR, 2010 WL 454951 at *1, 2010 Tex. App.
LEXIS 945 at *1-2 (Tex. App.—Houston [14th Dist.] Feb. 11, 2010, no pet.) (not designated for
publication) (finding that the appellate court had no jurisdiction over the attempted appeal of the
trial court’s orders denying the appellant’s motions to set aside, vacate and arrest judgment, for
evidentiary hearing, and for appointment of counsel).
                                                 8
hear this matter, and accordingly this matter is dismissed.”3 While not expressed

in the order, the obvious reason for the dismissal of the Motion for want of

jurisdiction was that Appellant was attempting to obtain post-conviction habeas

relief that was not within the purview of the trial court to grant.

         The trial court properly determined that it lacked jurisdiction to take any

action in the case other than to dismiss the motion for want of jurisdiction. A trial

court retains plenary power to modify its sentence if a motion for new trial or

motion in arrest of judgment is filed within thirty days of sentencing. See State v.

Davis, 349 S.W.3d 535, 537 (Tex. Crim. App. 2011) (citing State v. Aguilera, 165

S.W.3d 695, 697-98 (Tex. Crim. App. 2005)). But, Appellant’s Motion to Set

Aside Judgment was not filed within thirty days of sentencing—not by a long shot.

Indeed, his Motion was filed about twenty-four years too late.

         Because the type of relief requested by Appellant equates to post-conviction

relief in the form of a reversal of his conviction and the dismissal of charges, that

can only be done via post-conviction habeas relief. See Art. 11.07 § 3(a); Ater, 802

S.W.2d at 243. Thus, the trial court properly dismissed the motion for want of

jurisdiction due to the lack of a “specific statutory source” authorizing the trial

court to take any action on the Motion. Skinner, 305 S.W.3d at 594; see also State

v. Shelton, 396 S.W.3d 614, 619 (Tex. App.—Amarillo 2012, pet. ref’d) (finding

3
    (CR p. 29).
                                           9
that the trial court lacked jurisdiction to grant judicial clemency beyond thirty days

from entry of the general discharge order due to the lack of statutory authorization

to grant a judicial clemency discharge beyond that time period).

Is Appellant’s conviction void due to dismissal of Cause No. 89-409,601?

      For the reasons discussed above, the Court does not have jurisdiction to

decide the merits of whether the trial court erred by dismissing the Motion to Set

Aside Judgment. Likewise, the trial court lacked jurisdiction to consider the merits

of the Motion. Assuming, arguendo, that the Court does have jurisdiction to

consider the merits of the appeal, Appellant’s “voidness” claim is entirely lacking

in merit.

      Appellant argues that his conviction was and is void due to the dismissal of

Cause No. 89-409,601. Specifically, he argues that even though he was charged by

a facially valid indictment in Cause No. 89-409,752, and was convicted pursuant to

a facially valid indictment in that cause, his conviction is void due to the dismissal

of the first indictment. Due to the dismissal of the 89-409,601 cause, he says that

the trial court was without jurisdiction over the re-indicted offense and that his

conviction is void as a matter of law. (Appellant’s Br. at 4-5).

      Contrary to Appellant’s contentions, there is no authority for the proposition

that a defendant cannot be re-indicted for an offense after having been charged by

another indictment with the offense.      In fact, the authority is directly to the
                                          10
contrary. Article 32.02 of the Code of Criminal Procedure provides that the State

may dismiss a criminal action at any time as long as the judge presiding over the

action consents to the dismissal. TEX. CODE CRIM. PROC. ANN. art. 32.02. It is

well settled that dismissal of an indictment does not prevent the grand jury from

returning a subsequent indictment charging the same offense. Ex parte Williams,

379 S.W.2d 911, 912 (Tex. Crim. App. 1964); see also Hughes v. State, 16 S.W.3d

429, 430-31 (Tex. App.—Waco 2000, no pet.); In re Carter, No. 07-04-0418-CV,

2004 WL 2093375 at *1, 2004 Tex. App. LEXIS 8391 at *3 (Tex. App.—Amarillo

Sept. 20, 2004, no pet.) (not designated for publication). This is especially so

when the dismissal does not indicate that the cause was dismissed “with

prejudice.”4 See Hughes, 16 S.W.3d at 431.

       Appellant argues that the dismissal of Cause No. 89-409,601 constituted a

“voluntar[y] waive[r] and relinquish[ment of] jurisdiction over the subject matter

and and the person.”5 But, the return of an indictment in Cause No. 89-409,601

was not a one-shot proposition. As noted above, there is no authority for the

proposition that the State only has one chance to indict a person, and if it later

voluntarily seeks dismissal of that indictment, then it is forever barred from

seeking a new indictment (as long as the new indictment is not returned outside the

4
  As noted above, the 89-409,601 dismissal order did not indicate that the cause was dismissed
“with prejudice.” (Supp. CR p. 23).
5
  (Appellant’s Br. at 4).
                                              11
limitations period6). Thus, even if the trial court did have jurisdiction to consider

the merits of the Motion to Set Aside Judgment, it would properly have denied the

motion since the dismissal of Cause No. 89-409,601 did not prevent the grand jury

from returning a subsequent indictment in Cause No. 89-409,752 charging the

same transaction, or the State from prosecuting Appellant pursuant to the facially

valid indictment in Cause No. 89-409,752.7

6
  The statute of limitations in 1989 for aggravated robbery was five years from the date of the
commission of the offense. See TEX. CODE CRIM. PROC. ANN. arts. 12.01(3)(A); 12.03(d) (West
1989). Even excluding the tolling provisions of Article 12.05(b) of the Code of Criminal
Procedure, see TEX. CODE CRIM. PROC. ANN. art. 12.05(b) (West 1989), the indictment was still
returned well within the five-year limitations period (since it was returned less than two months
after the offense date).
7
  Though Appellant would have the Court believe otherwise, he is well aware that the grand jury
had the authority to return a subsequent indictment, and that the dismissal of Cause No. 89-
409,601 did not waive jurisdiction over the parties or subject matter. As suggested by the case
name, the In re Carter case is a prior case of Appellant’s, wherein Appellant attempted to obtain
mandamus relief against now-Justice Hancock, requesting that the Court order him to dismiss
Appellant’s conviction in the instant cause on grounds that the conviction is void (i.e., the exact
same claim being made in the instant case). The Court denied the petition for writ of mandamus,
noting that “[i]t is well settled that dismissal of an indictment does not prevent the grand jury
from returning a subsequent indictment charging the same offense.” In re Carter, 2004 WL
2093375 at *1, 2004 Tex. App. LEXIS 8391 at *3. Thus, Appellant has known for at least ten
years (if not longer) that his “voidness” claim is frivolous. That knowledge, however, did not
keep Appellant from filing a petition for writ of mandamus with the Court in 2010 requesting the
type of relief as that requested in the instant appeal. In re Carter, No. 07-10-00088-CV, 2010
WL 1790779, 2010 Tex. App. LEXIS 3368 (Tex. App.—Amarillo May 5, 2010, no pet.) (not
designated for publication).
        The sheer quantity of his frivolous pleadings caused the Court of Criminal Appeals to
enter an abuse of the writ order against Appellant in 2007 (after he had filed ten Article 11.07
writ applications). See Ex parte Carter, No. WR-24,583-14, 2007 WL 3010752, 2007 Tex.
Crim. App. Unpub. LEXIS 435 (Tex. Crim. App. Oct. 17, 2007) (not designated for
publication—cited for persuasive purposes only). Even after the abuse of the writ order had been
entered, however, Appellant filed two additional writ of habeas corpus applications—both of
which were dismissed due to the abuse of the writ order. See Ex parte Carter, No. WR-24,583-
15 (Tex. Crim. App. Feb. 25, 2009); Ex parte Carter, No. WR-24,583-16 (Tex. Crim. App. Feb.
1, 2012).
        Despite his knowledge that the law allows the State to dismiss a case (with the trial
                                                12
                                  Conclusion and Prayer

       For the reasons stated above, the State respectfully requests that the Court

dismiss Appellant’s appeal for want of jurisdiction, or alternatively that the Court

affirm the judgment and sentence in all things.

                                                    Respectfully submitted,

                                                    MATTHEW D. POWELL
                                                    Criminal District Attorney
                                                    State Bar No. 00784782


                                                    By: /s/ Jeffrey S. Ford
                                                    Jeffrey S. Ford
                                                    Assistant Criminal District Attorney
                                                    Lubbock County, Texas
                                                    State Bar No. 24047280
                                                    P.O. Box 10536
                                                    Lubbock, Texas 79408
                                                    (806)775-1100
                                                    FAX (806)775-7930
                                                    E-mail: JFord@co.lubbock.tx.us




court’s consent) and re-indict the defendant, Appellant continues to raise the same failed
arguments of the past in this appeal. One cannot help but conclude, as did the Court of Criminal
Appeals when it entered the abuse of the writ order in 2007, that Appellant “continues to raise
issues that have been presented and rejected . . . or that should have been presented.” Ex parte
Carter, 2007 WL 3010752 at *1, 2007 Tex. Crim. App. Unpub. LEXIS 435 at *1.
                                               13
                               Certificate of Service

      I certify that a true and correct copy of the foregoing brief for the State has
been delivered to Frank Dwight Carter, representing himself pro se, by placing a
copy in the United States Mail, addressed to Frank D. Carter, 8500 Drury Lane, St.
Louis, MO 63147 on January 7, 2015.

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford

                             Certificate of Compliance

     Pursuant to TEX. R. APP. P. 9.4(i)(3), I further certify that, relying on the
word count of the computer program used to prepare the foregoing State’s
Response, this document contains 2,500 words, inclusive of all portions required
by TEX. R. APP. P. 9.4(i)(1) to be included in calculation of length of the document.

                                              MATTHEW D. POWELL
                                              Criminal District Attorney
                                              State Bar No. 00784782


                                              By: /s/ Jeffrey S. Ford
                                              Jeffrey S. Ford




                                         14
