John v. Yearwood v. State

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Opinion issued May 31, 2007

























In The

Court of Appeals

For The

First District of Texas



NO. 01-06-00800-CR

____________



JOHN V. YEARWOOD, Appellant



V.



THE STATE OF TEXAS, Appellee



On Appeal from County Criminal Court at Law No. 11

Harris County, Texas

Trial Court Cause No. 5454



MEMORANDUM OPINION

Following a bench trial, the municipal court found appellant, John V. Yearwood, guilty of the misdemeanor offense of speeding (1) and assessed a seventy-five dollar fine. The county criminal court at law subsequently affirmed appellant's conviction. In four issues, appellant contends that articles 45.051(f)(2) and 45.0511(s) of the Texas Code of Criminal Procedure (2) violate the Texas and United States equal protection requirements "on their face" or, alternatively, as applied to individuals with commercial drivers' licenses who receive citations while driving their private non-commercial vehicles. (3)

We vacate the judgment of the county criminal court and dismiss the appeal.

Procedural Background

On March 4, 2005, the municipal court signed its judgment, and, on March 16, 2005, appellant filed a motion for new trial, in which he asserted,

The verdict in this cause is contrary to the law and the evidence. Moreover, the law which affected the plea negotiation on this case is unconstitutional and in violation of Defendant's Rights to Equal Protection under the Law. Whereas, had the Defendant had the opportunity to plea guilty in return for a deferred adjudication (probationary sentence), he would have accepted this offer. Therefore, as a licensed driver in the State of Texas, the Defendant was not afforded the same protections as other licensed drivers in the State of Texas.



The municipal court denied the motion for new trial on March 30, 2005. The county criminal court at law subsequently overruled appellant's issues and affirmed the judgment of the municipal court, concluding that "[a]ppellant has failed to preserve for review the [issues] in his brief because his motion for new trial was filed after the . . . deadline provided in the statute."

Failure to Timely Perfect Appeal

As an initial matter, we note that a defendant has a right to appeal to an appellate court the judgment of a county criminal court affirming a misdemeanor conviction only if the fine assessed "exceeds $100" or the appeal raises issues of constitutional magnitude. Tex. Gov't Code Ann. § 30.00027(a) (Vernon 2004); see, e.g., Thanheiser v. State, 855 S.W.2d 112, 113 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd). Appellant, in his brief to the county criminal court, raised constitutional issues regarding his case.

However, the Texas Government Code also provides that, in addition to filing a notice of appeal, "[t]o perfect an appeal [from a municipal court to a county criminal court], the appellant must file a written motion for new trial with the municipal clerk not later than the 10th day after the date on which judgment is rendered." Tex. Gov't Code Ann. § 30.00014(c) (Vernon Supp. 2006) (emphasis added). Subsections (a) and (b) of section 311.014 of the Texas Government Code provide,

(a) In computing a period of days, the first day is excluded and the last day is included.



(b) If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday.



Id. § 311.014 (Vernon 2005).

Here, the municipal court signed its judgment on Friday, March 4, 2005. Appellant did not file his motion for new trial until Wednesday, March 16, 2005, twelve days later, and did not otherwise request or obtain an extension of time to do so. Thus, his appeal to the county criminal court was untimely, and he failed to properly invoke that court's appellate jurisdiction. See id. §§ 30.00014(c), 311.014. Accordingly, the county criminal court at law should have dismissed appellant's appeal for want of jurisdiction. See id. § 30.00014(c).

Conclusion

The judgment from the county criminal court recites that "the judgment of the trial court [is] AFFIRMED." Accordingly, we vacate the judgment of the county criminal court and dismiss the appeal.



Terry Jennings

Justice



Panel consists of Justices Taft, Jennings, and Bland.



Do not publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Transp. Code Ann. § 545.351 (Vernon 1999).

2. See Tex. Code Crim. Proc. Ann. arts. 45.051(f)(2), 45.0511(s) (Vernon 2006).

3. We refer to the issues raised in the brief filed by appellant in the county criminal court, which, by statute, constitutes the brief on appeal to this Court. Tex. Gov't Code Ann. § 30.00027(b)(1) (Vernon 2004).