NO. 07-08-0267-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 8, 2008
______________________________
JOSEPH AKA JOEY H. JEFFREY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418170; HONORABLE WELDON KIRK, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Joseph Jeffrey, (aka Joey H. Jeffrey), seeks to appeal a judgment convicting him of intoxicated assault with a vehicle and imposing a life sentence. A copy of the judgment included in the clerk’s record and appellant’s docketing statement indicate sentence was imposed May 20, 2008. His notice of appeal was filed in the trial court on June 23, 2008. Finding we have no jurisdiction to consider the appeal, we dismiss it.
By letter, this Court informed appellant that the notice of appeal did not appear timely and directed him to file any documents or matters considered necessary for the Court to determine its appellate jurisdiction. In response, his counsel has submitted an affidavit in which he describes the circumstances that caused him to file the notice of appeal on June 23. Counsel’s affidavit concludes this Court is without jurisdiction to hear the appeal. We agree.
Our appellate jurisdiction is triggered through a timely notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996). Rule of Appellate Procedure 26.2(a) requires a notice of appeal be filed within 30 days after the day sentence is imposed in open court, or within 90 days after imposition of the sentence if a timely motion for new trial is filed. No motion for new trial was filed in this case.
The rules permit an appellate court to extend the time to file a notice of appeal, under a procedure outlined in Rule of Appellate Procedure 26.3. Appellant did not initiate that procedure in this case. Appellant’s notice of appeal, filed more than thirty days after imposition of sentence in open court, was untimely.
The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus from the Texas Court of Criminal Appeals pursuant to Code of Criminal Procedure article 11.07. Tex. Code Crim. Proc. Ann art. 11.07 (Vernon Supp. 2004); Portley v. State, 89 S.W.3d 188, 190 (Tex.App.–Texarkana 2002, no pet.). Because appellant’s notice of appeal was untimely, this Court has no jurisdiction to take any action but to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); see Olivo, 918 S.W.2d at 522.
Consequently, we dismiss the appeal for want of jurisdiction.
James T. Campbell
Justice
Do not publish.
The fact that the expert's opinion has not been published or evaluated in professional journals does not compel a determination that his opinion is wrong, however the absence of any review or evaluation by third parties renders his personal opinion unreliable. See Couch, 108 S.W.3d at 341-42.
To constitute evidence of causation, an expert opinion must rest in reasonable medical probability. Insurance Co. of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966). Later, in Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995), the Court acknowledged the need to avoid opinions based on speculation and conjecture. Even assuming that Lustbader's opinion based on his personal experience in Washington D.C. is correct, a question we do not decide, the absence of medical literature at this time and general knowledge in the medical community of the procedure recommended by Lustbadfer renders a determination of the foreseeability element of proximate cause speculative. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996).
Brazil suggests that Marvelli v. Alston, 100 S.W.3d 460, 479 (Tex.App.--Fort Worth 2003, pet. denied), supports his position that the absence of medical literature does not render the opinion merely subjective and ipse dixit statements. However, Marvelli is not controlling because, considering the evidence presented there, the gatekeeper concluded that the expert's opinions were not merely subjective ipse dixit statements unsupported by scientific principle or data and were reliable. Moreover, the Robinson factors do not constitute the legal equivalent of a litmus test, but instead, furnish guidelines for the trial court to use in determining the relevance and reliability requirements in discharging its duty as the gatekeeper. Here, however, based on the evidence before it, in exercising its discretion, the gatekeeper excluded the expert's opinion as to causation. Concluding that Brazil has not met his burden, we find the trial court did not abuse its discretion in striking Lustbader's expert testimony regarding causation and, consequently signing the partial summary judgment. Brazil's sole issue is overruled.
Accordingly, the interlocutory order granting the no-evidence summary judgment in part is affirmed.
Don H. Reavis
Justice