07-06-0470-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 13, 2007
______________________________WALTER EARL HARRELL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 121ST DISTRICT COURT OF TERRY COUNTY;
NO. 4252, 4983; HONORABLE KELLY G. MOORE, JUDGE _______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Walter Earl Harrell, seeks to appeal orders recouping court appointed attorney fees and court costs from appellant's inmate trust fund account. We find that the orders being appealed are non-appealable orders and dismiss for want of jurisdiction.
On August 19, 1997, appellant was convicted and placed on community supervision for possession with intent to deliver a controlled substance, cocaine. On February 22, 2000, appellant's community supervision was revoked and appellant was sentenced to 10 years confinement in the Institutional Division of the Texas Department of Criminal Justice and ordered to pay $200 in attorney fees.
On July 9, 2003, appellant pled guilty to the offense of possession of a controlled substance, cocaine. Appellant was sentenced to 18 years confinement in the Institutional Division of the Texas Department of Criminal Justice and ordered to pay $248 in court costs and $300 in attorney fees.
On October 27, 2006, the trial court signed two withdrawal orders notifying the Department that appellant had been assessed court costs and attorney fees totaling $200 in the first cause and $548 dollars in the second cause. The two withdrawal orders to the Texas Department of Criminal Justice ordered the Department to withdraw money from the trust account of appellant in accordance with section 501.014 of the Texas Government Code.
On November 18, 2006, appellant filed notice of appeal in each case complaining of the October 27th withdrawal order. On November 27, appellant filed, in the trial court, a Motion to Rescind Order requesting the trial court to rescind its withdrawal order. On February 20, 2007, appellant requested a preparation of the clerk's record requesting documents of the original proceedings including the plea agreements, judgments of guilt, and trial docket sheets, as well as the reporter's record of the plea and sentencing proceedings. Appellant also requested all pleadings, documents, and transcription of any hearing relevant to the court's withdrawal orders. The trial court denied the Motion to Rescind and the request for preparation of the record. Since appellant was not appealing the judgment or sentence, the trial court held that appellant was not entitled to a free record of those proceedings. The trial court further stated that no hearing was held on the withdrawal orders and, therefore, no reporter's record exists regarding the withdrawal order.
We have found no authority giving us jurisdiction to review a withdrawal order issued
under section 501.014(e) of the Texas Government Code. See Gross v. State, No. 07-06-0489-CR, 2007 WL 2089365, at *2 (Tex.App.-Amarillo July 23, 2007, no pet. h.). (1)
Therefore, we conclude that we must dismiss the appeal for want of jurisdiction.
Mackey K. Hancock
Justice
Do not publish.
1. On April 9, appellant filed a motion for records in this cause requesting that the clerk's record be provided to him. On April 30, appellant filed his brief with this court. On July 9, he filed another motion for the clerk's records seeking that we order the trial court to produce the clerk's records. Appellant also filed a motion for appellee's brief; however, the State did not file a brief in this matter. Having found that this court does not have jurisdiction, we do not have the power to act on appellant's motions before this court. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996).
stimony of Gilbert was sufficient to satisfy the State's burden, points one and two are overruled.
By his third and fourth points of error, appellant contends the trial court erred in failing to quash the indictment and by overruling his objection to the charge regarding the range of punishment. He argues that he was incorrectly charged with a third degree felony instead of a state jail felony. We disagree.
Under section 38.04(b)(2)(A) of the Texas Penal Code, effective September 1, 2001, evading arrest or detention is a third degree felony if a vehicle is used and the defendant has previously been convicted under this statute. Because appellant was convicted for evading arrest on March 9, 2000, on September 1, 2001, he had a prior conviction for evading arrest.
Section 38.04(b)(2)(A) does not provide that the offense is a felony only if the prior offense was committed after September 1, 2001. Further, as written, a prior offense is not an element of the offense of intentionally fleeing from arrest. Appellant's argument is similar to the defendant's argument in State v. Mason, 980 S.W.2d 635, 640 (Tex.Cr.App. 1998). There, in rejecting Mason's argument and in discussing section 46.04, the Court concluded that only Mason's "status as a felon" was an element of section 46.04, not the date upon which the prior conviction occurred. A plain reading of the statute shows that the elements of the offense are set out in subsection (a) but the grade of the offense is prescribed by subsection (b). As in Mason, we hold that appellant's status as a felon was not an element of the offense. Points three and four are overruled.
By his fifth point of error, appellant contends the trial court erred in denying his request for an instruction in the charge on the defense of necessity. We disagree. Citing section 9.22 of the Texas Penal Code, appellant argues he was entitled to an instruction on the defense of necessity. Because he did not testify, there was no evidence that he had a reasonable belief he needed to try to avoid the pursuit by Gilbert. See § 9.22(1). Moreover, because appellant did not admit the offense, the defense was not raised. See Young v. State, 991 S.W.2d 835, 838 (Tex.Cr.App. 1999). Point five is overruled.
Accordingly, the judgment of the trial court is affirmed.
Per Curiam
Johnson, C.J., not participating.
Do not publish.