Ross M. O'Conner v. State

NO. 07-08-0293-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 15, 2008

______________________________

ROSS M. O’CONNER, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

NO. 2006-440,290; HON. LARRY B. LADD, PRESIDING

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION

          Appellant, Ross M. O’Conner, appeals his conviction for the offense of driving while intoxicated and sentence of 120 days confinement in the county jail and fine of $1,000 suspended for one year. We will dismiss the appeal for want of jurisdiction.

          On June 17, 2006, appellant was arrested for the offense of driving while intoxicated and charged by information for the offense. Prior to trial, on November 1, 2007, and January 16, 2008, the trial court held hearings on appellant’s motion to suppress appellant’s statements made to the police officer prior to any Miranda warnings. On February 21st, the trial court filed a letter denying appellant’s motion to suppress. On April 14th, appellant entered an open plea of guilty before the trial court, who delayed sentencing and ordered a presentencing report. On May 29th, after receiving the presentencing report, the trial court proceeded to find appellant guilty and sentenced him to 120 days in county jail and $1,000 fine. The trial court then suspended the sentence as well as $250 of the fine for one year. At the sentencing hearing, the trial court also briefly mentioned some conditions of probation but concluded the hearing by stating that the actual written judgment would be prepared later, requested that the State prepare the judgment, and asked the State to make a copy available to defense counsel “so that he can make any objections if he sees fit.” The judgment was signed on June 5th, and appellant filed his notice of appeal on July 3rd. On August 12, this court notified appellant that the notice of appeal appeared untimely having been filed more than 30 days from May 29th. Appellant filed a brief on the issue of the court’s jurisdiction on August 22nd contending that the time for filing notice of appeal began on June 5th with the trial court’s signing of the judgment.

          A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In the absence of a timely filed notice of appeal that complies with the requirements of the Texas Rules of Appellate Procedure, a court of appeals does not obtain jurisdiction to address the merits of the appeal in a criminal case and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).

          Appellant contends that, although the trial court announced sentencing in open court on May 29th, the sentencing was not completed until the execution of the judgment on June 5th. Appellant notes that the written judgment contains several conditions of probation not announced at the May 29th hearing and contends that appellant’s sentence was not “suspended in open court” until the day the last condition of probation was decided and formalized in the written judgment on June 5th. Appellant cites Bailey v. State, 160 S.W.3d 11 (Tex.Crim.App. 2004), for his contention that the time to file an appeal did not begin until June 5th when all conditions of probations were “pronounced” in the judgment because the court specifically requested that the State make a copy available to appellant in order to allow him an opportunity to object. Appellant contends that, by allowing him an opportunity to object, the trial court evidenced that it had not completed sentencing until the terms of probation were incorporated into the judgment. We disagree.

          In Bailey, the appellant pled guilty and was sentenced by the trial court who then proceeded to suspend the sentence. However, the trial court set another hearing date for one month later “to consider the State’s request for restitution as a further condition of probation.” Bailey, 160 S.W.3d at 12 (emphasis added). After the restitution hearing, the trial court ordered that the conditions of the appellant’s probation be amended to include restitution payments and signed a restitution order to that effect. Bailey filed a notice of appeal stating that “[t]he Defendant desires to appeal the JUDGMENT and SENTENCE in the above cause, in addition to the Court’s appealable ORDERS concerning restitution and probationary conditions.” Id. The Court of Criminal Appeals acknowledged that Bailey could not have appealed a decision granting restitution until the restitution order was entered and, because of the unique facts of the case, determined that sentence was not imposed within the meaning of Texas Rule of Appellate Procedure 26.2(a)(1) until the day the last condition of probation was decided. Id. at 16. However, the starting point for calculating the timeliness of the notice of appeal is context dependent. Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Crim.App. 1993). In the “ordinary” appellate context, where the defendant appeals a judgment of conviction, the thirty days begin to run on the day sentence is imposed or suspended in open court. Id. When some other action of the trial court is appealed, the appellate timetable begins with the signing of the particular order. Id. In Bailey, the Court of Criminal Appeals made such a distinction and remanded the cause only for a hearing on the merits of Bailey’s challenge to the restitution order, even though Bailey also desired to appeal the judgment and sentence. Bailey, 160 S.W.3d at 16.

          In this case, appellant challenges his conviction and sentence and raises on appeal concerns regarding the admission of extra-judicial statements. Therefore, we conclude that the present case is from an “ordinary” appellate context and, thus, appellant’s time to file an appeal to challenge his conviction began to run on the day sentence was suspended in open court on May 29. See Rodarte, 860 S.W. 2d at 109. Therefore, appellant was required to give notice of appeal within 30 days after the date sentence was imposed in open court, or June 30. See Tex. R. App. P. 26.2(a). Appellant’s failure to timely file a notice of appeal prevents this court from exercising jurisdiction over his appeal. Slaton, 981 S.W.2d at 210. Consequently, the appeal is dismissed for want of jurisdiction.

 

                                                                           Mackey K. Hancock

                                                                                      Justice

 

 

Publish.

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NO. 07-10-00065-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

MARCH 31, 2010

 

 

RICKY D. STARKS, APPELLANT

 

v.

 

TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, APPELLEE

 

 

 FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

 

NO. 91,655-00-E; HONORABLE DOUGLAS WOODBURN, JUDGE

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

MEMORANDUM OPINION

 

 

Appellant, Ricky D. Starks, appeals an order granting appellee, the Texas Department of Criminal Justice, summary judgment.  We dismiss for want of jurisdiction.

The clerk=s record reflects that Starks filed notice of appeal on February 22, 2010.  The judgment appealed from was signed on October 20, 2009.  Appellant filed a motion for new trial on December 16, 2009.  A timely filed motion for new trial will extend the deadline for filing notice of appeal to 90 days from the date judgment was signed.  See Tex. R. App. P. 26.1.  However, in the present case, appellant’s motion for new trial was not timely filed.  See Tex. R. Civ. P. 329b(a).

Texas Rule of Civil Procedure 306a provides an exception to the general rule when a party does not receive notice of judgment until 20 or more days after judgment is signed so long as the notice is received prior to the ninety-first day after the judgment is signed.  See Tex. R. Civ. P. 306a(4).  Under the procedures established by this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing.  See Tex. R. Civ. P. 306a(5).  Compliance with the provisions of rule 306a is a jurisdictional prerequisite.  See Mem’l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam).

On January 22, 2010, appellant filed a motion to extend postjudgment deadlines in an attempt to comply with the requisites of rule 306a(5).  However, appellant swore that “the foregoing [the motion] is true and correct to the best of my knowledge . . . .”  The “sworn motion” required by rule 306a(5) is not satisfied by the affiant’s allegation that “the facts contained herein are true and correct to the best of my knowledge.”  In re Simpson, 932 S.W.2d 674, 677 (Tex.App.—Amarillo 1996, no writ).  Rather, to be sufficient, the allegation must directly and unequivocally represent the facts are true and within the personal knowledge of the affiant.  Id. (citing Burke v. Satterfield, 525 S.W.2d 950, 954-55 (Tex. 1975)). 

By letter dated March 17, 2010, the Court notified Starks that it appeared from the clerk’s record that this Court’s jurisdiction was not properly invoked and directed Starks to show cause why the appeal should not be dismissed for want of jurisdiction.  Starks filed a response on March 26, 2010. 

In this response, Starks contends that, as an inmate, he is allowed to file an unsworn declaration in lieu of a sworn certification.  See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon Supp. 2009).  While Starks is correct, it is the equivocal nature of his unsworn declaration that is fatal to his motion, rather than the failure to have the declaration sworn.

In addition, Starks contends that this Court cannot “raise” the issue of a defect in his motion to extend postjudgment deadlines.  Compliance with the provisions of rule 306a is necessary to invoke this Court’s jurisdiction when notice of appeal is untimely filed.  See Gillis, 741 S.W.2d at 365.  If notice of appeal is not filed timely, the appellate court's jurisdiction is invoked only to the extent that the court may determine its lack of jurisdiction and dismiss the appeal. See Simpson, 932 S.W.2d at 679.  Courts must address questions of jurisdiction both sua sponte and when raised by the parties.  Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.--Amarillo 1995, no writ).  Thus, this Court can not only “raise” the issue of its jurisdiction, but it must do so when that jurisdiction is absent or has not been properly invoked.

For the foregoing reasons, we dismiss Stark’s appeal for want of jurisdiction.

                                                                                   

                                                                                   

                                                                        Mackey K. Hancock

                                                                                    Justice