In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00172-CR ______________________________
RICHARD LEONAR WHYTUS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court No. 24,840
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Richard Leonar Whytus appeals from his conviction by a jury on seven charges of aggravated assault with a deadly weapon. (1) See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2008). The evidence shows that, while quite intoxicated, he drove his car into a daycare full of napping children. Two workers and several of the children were injured.
Whytus has filed a single brief, in which he raises a single issue which is common to all of his appeals. He argues that the trial court committed reversible error by refusing to submit his requested charge on the lesser-included offense of assault causing bodily injury.
We addressed this issue in detail in our opinion of this date on Whytus' appeal in cause number 06-08-00167-CR. For the reasons stated therein, we likewise conclude that error has not been shown in this case.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: February 26, 2009
Date Decided: February 27, 2009
Do Not Publish
1. Whytus appeals from seven convictions, all for aggravated assault with a deadly weapon, cause numbers 06-08-00167-CR through 06-08-00173-CR.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00087-CV
______________________________
MELVIN EARL GOODSPEED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 00F0659-202
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
O P I N I O N
Melvin Earl Goodspeed was convicted of aggravated sexual assault of a child in 2001. He was sentenced to ninety-nine years imprisonment and was ordered to pay $237.25 in court costs. On July 11, 2011, the trial court noticed a withdrawal of the $237.25 from Goodspeeds inmate trust account. Goodspeed appeals from a withdrawal notification on the grounds that it was issued outside of the trial courts plenary power, without any notice being given, and without an itemization of costs. We dismiss the appeal for want of jurisdiction.
Section 501.014(e) of the Texas Government Code provides that upon notification by a court, the department shall withdraw from an inmates account any amount the inmate is ordered to pay by order of the court under this subsection, and shall make payment as ordered by the court. Tex. Govt Code Ann. § 501.014(e) (West Supp. 2010). A notification to withdraw funds can be issued as payment in full for all orders for court fees and costs. Tex. Govt Code Ann. § 501.014(e)(4). Proceedings under this section are civil in nature and are not part of the underlying criminal case. Harrell v. State, 286 S.W.3d 315, 316 (Tex. 2009).
The Texas Supreme Court held in Harrell that because these post-judgment collection efforts are designed to reimburse the State, and not to punish the inmate, due process is satisfied if the inmate receives notice and the opportunity to be heard after funds are withdrawn. Id. The opportunity to be heard can be secured via motion made by the inmate. Id. at 321. Here, it is clear that Goodspeed received a copy of the withdrawal notice. However, unlike the inmate in Harrell, Goodspeed did not file a motion complaining of the notice with the trial court. Instead, he immediately filed this appeal.
As explained in Harrell, a withdrawal notification is not an order in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. Id. at 316 n.1; Bryant v. State, No. 07-10-0358-CV, 2011 WL 2175769, at *1 n.3 (Tex. App.Amarillo June 3, 2011, no pet.) (mem. op.); Jewell v. State, No. 061000114CV, 2011 WL 1642769, at *1 (Tex. App.Texarkana Apr. 29, 2011, no pet.) (mem. op.) (The trial courts ruling on the inmates contest [to a withdrawal notification] is what can be appealed.). Because a notice of withdrawal is not an order, there is no final order from which Goodspeed may appeal. Williams v. State, 332 S.W.3d 694, 698 (Tex. App.Amarillo 2011, pet. denied) (citing Ramirez v. State, 318 S.W.3d 906, 908 (Tex. App.Waco 2010, no pet.) (holding that [o]nly when [the withdrawal notification is] properly challenged and denied relief is there a trial court order that is final from which the inmate . . . can appeal)).
Accordingly, we dismiss the appeal for want of jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: October 10, 2011
Date Decided: October 12, 2011