In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00130-CR ______________________________
DAMON EARL LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court Hopkins County, Texas Trial Court No. 0216853
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Damon Earl Lewis attempts to appeal his conviction for aggravated sexual assault of a child and indecency with a child. Lewis was convicted by a jury and sentenced to ninety-nine years' imprisonment for aggravated sexual assault and twenty years' imprisonment for indecency with a child. The issue before us is whether Lewis timely filed his notice of appeal. We conclude he did not and dismiss the attempted appeal for want of jurisdiction.
On the issue of whether Lewis timely perfected his appeal, the record establishes: (1) Lewis' sentence was imposed in open court on December 11, 2002; (2) Lewis filed a motion for new trial on December 16, 2002; and (3) Lewis' notice of appeal was not filed until July 1, 2003.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2(a) prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect an appeal in a criminal case. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. A court of appeals may consider a late notice of appeal timely to invoke jurisdiction if: (1) it is filed within fifteen days of the last day allowed for filing; (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal; and (3) the court of appeals grants the
motion for extension of time. Olivo, 918 S.W.2d at 522. Here, none of the criteria listed above were met in the filing of Lewis' notice of appeal.
When a defendant appeals from a conviction in a criminal case, the time to file a notice of appeal runs from the date sentence is imposed or suspended in open court, not from the date sentence is signed and entered by the trial court. Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993). The last date allowed for Lewis to timely file his notice of appeal was March 11, 2003, ninety days after the day sentence was imposed in open court. See Tex. R. App. P. 26.2(a)(1). Because Lewis did not file his notice of appeal until July 1, 2003, he failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 13, 2003
Date Decided: August 14, 2003
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ou by yourself?
. . . .
A As far as I recall, all of the grand jury . . . .
Q And how many of you were there?
A Six or eight, something like that.
Q Six or eight. That's what the State requires, six or eight?
A As far as I know.
Grand juries in Texas are composed of twelve persons, but only a quorum of nine is required to transact business. Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. arts. 19.26(b) (Vernon Supp. 2002), 19.40 (Vernon 1977). The testimony from the grand jury foreman was given two years after the fact and shows the witness was less than certain as to the exact number of grand jurors present at the time Taylor was indicted. Under questioning by the State on redirect examination, the foreman acknowledged he did not "know the technicalities of the law," but stated unequivocally that a quorum was present when the grand jury returned the indictment against Taylor. Taylor's second issue is overruled.
In his third issue, Taylor contends the sentencing in this case constitutes double jeopardy. He bases this contention on a pronouncement made by the trial court at sentencing:
And it is the order of this court that the judgment and sentence in this cause shall begin to run from and after the sentence that you received in Cause No. 19,753, for aggravated assault on a correctional officer in the 3rd District Court of Anderson County, Texas.
When that sentence has ceased to operate, sir, this sentence shall begin to run; . . . .
Taylor argues that this pronouncement "added onto time credit of Cause No. 19753 before being release [sic] from prison."
Tex. Code Crim. Proc. Ann. art. 42.08(b) (Vernon Supp. 2002) provides:
If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.
The trial court followed Section 42.08(b) when it made the pronouncement quoted above, and Taylor has not cited any authority holding such to constitute double jeopardy. This issue is overruled.
In his fourth issue, Taylor seems to contend that prior convictions used for enhancement purposes in an indictment are subject to the statute of limitations. In this assertion, Taylor confuses the statute of limitations for obtaining an indictment for a particular offense with the use of a prior felony as an enhancement for sentencing. Because there is no statute of limitations for the use of a prior felony for the purpose of enhancing a sentence, there is no merit to this contention. This issue is overruled.
Taylor next complains of being put on a punitive food loaf while in prison and asserts this violated his religion and was detrimental to his health. However, none of these claims relate to his guilt or innocence of the offense for which he was convicted or to errors committed at his trial. Taylor's fifth issue is overruled.
As his sixth issue, Taylor contends that he was denied access to the court and that records were withheld from him. However, the record shows Taylor was present at all hearings, and he has failed to specify under this issue what records, if any, were withheld from him. This issue is overruled.
In a related but separate issue, Taylor contends he did not receive a copy of the reporter's record in this case. During the pendency of Taylor's appeal, he complained to this Court that he had not received a copy of the reporter's record. We abated the case to the trial court for a determination regarding whether Taylor was in possession of a copy of the reporter's record. In response, the court reporter provided this Court with a copy of a letter addressed to Taylor wherein she stated she had mailed Taylor a second copy of the reporter's record. No further complaint of this matter was made by Taylor until he raised this issue in his supplemental brief. He apparently received the reporter's record mailed to him, and he has failed to show how he was harmed by not having possession of the reporter's record before receiving a copy in the mail. This issue is overruled.
In his final issue, Taylor complains about his time sheets in prison. However, any complaint about how Taylor's time has been credited by prison authorities must be raised by a writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2002). This issue is overruled.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: October 17, 2002
Date Decided: November 1, 2002
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