IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 11, 2001
______________________________
ROYCE L. WELLINGTON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-435469; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
Pending before the Court is a "Motion for Appeal of Conviction," filed by appellant Royce L. Wellington, an Appeals Certificate by the clerk for the 140th District Court of Lubbock County, and a Clerk's Record as to Cause Number 2001-435,469 in the 140th District Court of Lubbock County. We dismiss for want of jurisdiction.
By his Motion for Appeal appellant sought the trial court's approval to appeal from his conviction pursuant to a plea-bargained guilty plea for Aggravated Assault-Public Servant. The judgment was signed on June 1, 2001; sentence was imposed on June 1, 2001; no Motion for New Trial was filed, except to the extent appellant's Motion for Appeal could be construed as an untimely Motion for New Trial; appellant's Motion for Appeal was filed on August 28, 2001. In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R. App. P. 25.2(a). The notice of appeal must be filed within 30 days after the day sentence is imposed or after the day the trial court enters an appealable order, unless a timely motion for new trial is filed. TRAP 26.2(a). A motion for new trial may be filed by a criminal defendant no later than 30 days after the date sentence is imposed in open court. TRAP 21.4(a). The time for filing a notice of appeal may be extended for 15 days under certain circumstances. TRAP 26.3. If the time for filing a notice of appeal is to be extended, both a notice of appeal and a motion for extension of time which complies with TRAP 10.5(b) must be filed within the 15 day period. TRAP 26.3; Olivo v. State, 918 S.W.2d 519, 523-25 (Tex.Crim.App. 1996).
An untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See State v. Riewe, 13 S.W.2d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d at 523-25.
To the extent appellant's Motion for Appeal is a Motion for New Trial it was not timely to extend the time for filing notice of appeal; to the extent appellant's Motion for Appeal is a notice of appeal, it was not timely filed. A motion to extend time to file notice of appeal was not filed. Accordingly, this court does not have jurisdiction over this proceeding. Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
The matter is dismissed for want of jurisdiction. TRAP 39.8, 40.2, 43.2.
Phil Johnson
Justice
Do not publish.
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NO. 07-10-00402-CR; 07-10-00403-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 23, 2011
EDDIE PEEL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY;
NO. F-2010-0942-E, F-2010-0943-E; HONORABLE LEE GABRIEL, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Eddie Peel, entered pleas of guilty to sexual assault of a child[1] in Cause No. 07-10-0402-CR and sexual assault[2] in Cause No. 07-10-0403-CR.[3] Pursuant to a plea agreement, appellant was placed on deferred adjudication community supervision on each case. The deferred adjudication was subsequently adjudicated and appellant was sentenced to serve a term of confinement of 11 years in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ) on each case, all confinement to be served concurrently. Appellant appeals raising two issues. We will affirm.
Factual and Procedural Background
Appellant was initially indicted on charges of sexual assault of a child and aggravated sexual assault of a child. See §§ 22.011(a)(1), 22.021(a). After indictment and prior to entry of a plea, appellant and the State agreed on a plea whereby appellant would plead guilty to the sexual assault of a child in Cause No. 07-10-0402-CR and to a lesser-included charge of sexual assault in Cause No. 07-10-0403-CR. In return for the pleas of guilty, appellant was placed on deferred adjudication community supervision for a period of eight years on each case. No pretrial motions were filed in either case by appellants trial counsel.
Subsequently, the State filed a motion in each case to adjudicate appellant guilty. The trial court conducted a hearing on the States motion to adjudicate and appellant entered pleas of true to each of the allegations contained in the States motions. After hearing evidence regarding punishment, the trial court sentenced appellant to confinement in the ID-TDCJ for a period of 11 years on each case.
Appellant appeals contending that the indictment in Cause No. 07-10-0402-CR is fundamentally defective, and that section 22.021 is void for vagueness as applied to appellant. We will affirm the judgment of the trial court.
Defective Indictment
Appellants first issue contends that the indictment in Cause No. 07-10-0402-CR is defective because it fails to negate an exception to the crime, as provided in section 22.011(e), that the actor was the spouse of the child at the time of the offense. Appellants theory continues that, since the missing portion is an element of the offense, the indictment is incomplete. Therefore, according to appellant, the indictment is fundamentally defective. See Murk v. State, 775 S.W.2d 415, 416 (Tex.App.Dallas 1989), revd 815 S.W.2d 556 (Tex.Crim.App. 1991). Further, appellant posits that a fundamentally defective indictment does not invest jurisdiction in the trial court. See Beets v. State, 767 S.W.2d 711, 723 (Tex.Crim.App. 1987). Accordingly, under appellants theory, this type of error cannot be waived. See Oliver v. State, 787 S.W.2d 170, 172 (Tex.App.Beaumont 1990), revd 808 S.W.2d 492 (Tex.Crim.App. 1991). As can be ascertained by the subsequent history of the cases cited to support appellants position, most of the cases have been reversed.
The State posits that appellant has forfeited his complaint by not raising this issue when the deferred adjudication was first granted. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). It is only if we are reviewing a void judgment that this rule is not applicable. See Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App. 2001). Therefore, if the indictment was defective to the point that it did not confer jurisdiction to render a judgment, then appellant would not have to worry about the issue of preservation of this point for appeal. See id.
The problem with appellants theory, as pointed out by the State and accepted by this Court, is that the law regarding an indictment that is so defective as to not confer jurisdiction on the trial court has changed. Under the Texas Court of Criminal Appealss decision in Smith v. State, a defect in an indictment by failure to recite an element is a substance defect in the indictment. Smith v. State, 309 S.W.3d 10, 16-17 (Tex.Crim.App. 2010). A substance defect in an indictment still confers jurisdiction on the trial court. Id. at 17. Therefore, the conviction is not void. Id. Since the conviction is not void, appellant must comport with the requirements of article 1.14 of the Texas Code of Criminal Procedure.[4] The record clearly bears out that there was no objection ever lodged against this indictment in Cause No. 07-10-0402-CR. Accordingly, appellant has waived any purported error and his issue is overruled.
Constitutional Challenge to § 22.021
Appellants final issue contends that section 22.021 is unconstitutionally void for vagueness as applied to him. Because of this alleged constitutional infirmity, appellant insists that we must reverse and dismiss the case in Cause No. 07-10-0403-CR. The record reveals that, although appellant was indicted pursuant to section 22.021, he entered a plea of guilty to the lesser-included offense found in section 22.011(a)(1). Therefore, we are immediately faced with the issue of whether or not appellant has standing to challenge the constitutionality of section 22.021. We hold that appellant does not have standing to make a constitutional challenge to section 22.021.
To have standing to challenge the constitutionality of a statute, the challenger must first demonstrate an adverse impact on his rights. See Suarez v. State, No. 14-97-00342-CR, 1999 Tex. App. LEXIS 1256 at *6 (Tex.App.Houston [14th Dist.] Feb. 25, 1999, no pet.) (not designated for publication) (citing Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App. 1992)). In the case before the Court, appellant did not enter a plea to any charge pursuant to section 22.021. In the Suarez case, the appellant was attempting to challenge the constitutionality of Texas Transportation Code section 724.061 regarding admission of the appellants refusal to give a specimen of his breath or blood. Id. at *6-*7. Suarez pleaded guilty and did not go to trial, therefore, the court held he had no standing to challenge the constitutionality of section 724.061 of the Texas Transportation Code. Id. Here, appellant entered his plea to a reduced charge and was not subjected to the punishment of section 22.021, therefore, he has no standing. Appellants challenge is overruled.
Conclusion
Having overruled appellants issues, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
[1] See Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 2010).
[2] See Tex. Penal Code Ann. § 22.011(a)(1).
[3] Further reference to the Texas Penal Code Ann. will be by reference to section ___ or § ___.
[4] Article 1.14(b) of the Texas Code of Criminal Procedure provides:
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.