COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00104-CR
LOREN RUSSELL LOOPER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY
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MEMORANDUM OPINION1 ON APPELLANT’S PETITION FOR
DISCRETIONARY REVIEW
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Pursuant to Texas Rule of Appellate Procedure 50, 2 we withdraw our May
19, 2011 opinion and judgment and substitute the following.
A jury convicted Appellant Loren Russell Looper for failing to yield the right
of way, and the Arlington municipal court of record sentenced him to pay “a fine
1
See Tex. R. App. P. 47.4.
2
Tex. R. App. P. 50.
and costs totaling $84.00.”3 The municipal court “further Ordered [Appellant to]
pay the fine and costs totaling $183.00 to the State of Texas for the use and the
benefit of the City of Arlington.” Appellant appeals the county criminal court’s
judgment affirming his municipal court conviction and sentence. The State has
filed a motion to dismiss this appeal for want of jurisdiction. For the reasons
outlined below, we grant the State’s motion and dismiss this appeal for want of
jurisdiction.
In a criminal case, an appellant may appeal to this court from a municipal
court’s judgment affirmed by a county criminal court only if the judgment
assesses a fine exceeding $100 or the sole issue is the constitutionality of the
statute or ordinance under which the appellant was convicted. 4 We do not have
jurisdiction “to embrace any case which has been appealed from any inferior
court to the . . . county criminal court . . . in which the fine imposed or affirmed by
the . . . county criminal court . . . does not exceed one hundred dollars, unless
the sole issue is the constitutionality of the statute . . . on which the conviction is
based.”5
3
See Tex. Transp. Code Ann. § 545.152 (West 2011).
4
Act of June 17, 2011, 82nd Leg., R.S., ch. 1324, § 4, 2011 Tex. Sess.
Law Serv. n.p. (West) (to be codified as an amendment to Tex. Gov’t Code Ann.
§ 30.00027(a)).
5
Act of June 17, 2011, 82nd Leg., R.S., ch. 1324, § 1, 2011 Tex. Sess.
Law Serv. n.p. (West) (to be codified as an amendment to Tex. Code Crim. Proc.
Ann. art. 4.03).
2
The plain language of these statutes does not include the term “costs”
within the amount that must exceed $100. 6 The mandatory costs associated with
the offense for which Appellant was convicted exceed $83.7 Consequently, even
if the fine assessed by the trial court in its admittedly poorly worded judgment
was not $84, it was in no event more than $100.
In his brief below, Appellant raised no issues challenging the
constitutionality of the statute on which his conviction is based. Appellant
challenges the constitutionality of the statute on which his conviction is based for
the first time in his “Amendment & Response to the State’s Response on the
Petition for Discretionary Review.” But section 30.00027(b) of the government
code provides,
The provisions of the Code of Criminal Procedure relating to direct
appeals from a county or a district court to the court of appeals apply
to the appeal, except that:
6
Act of June 17, 2011, 82nd Leg., R.S., ch. 1324, §§ 1, 4, 2011 Tex. Sess.
Law Serv. n.p. (West) (to be codified as amendments to Tex. Code Crim. Proc.
Ann. art. 4.03 and Tex. Gov’t Code Ann. § 30.00027(a) respectively); see also
Prudholm v. State, 333 S.W.3d 590, 594 n.16 (Tex. Crim. App. 2011) (citing
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991), for proposition that
we give effect to plain language of a statute unless it would lead to absurd
results).
7
See Tex. Gov’t Code Ann. §§ 102.021 (imposing at least $39 in costs in
various categories), .0212(3) (providing that person convicted of nonjailable
misdemeanor that is not an offense related to a pedestrian or the parking of
motor vehicle shall pay $40 in addition to all other costs), .0213(1) (imposing
additional cost of $3), .121 (imposing additional costs of at least $6.10) (West
Supp. 2010).
3
(1) the record and briefs on appeal in the appellate court
constitute the record and briefs on appeal to the court of
appeals unless the rules of the court of criminal appeals
provide otherwise; and
(2) the record and briefs shall be filed directly with the court of
appeals.8
Under the statute, the briefs filed below constitute the briefs on appeal in
this court,9 and Appellant has not directed us to any rule of the Texas Court of
Criminal Appeals providing otherwise.10
Because Appellant’s fine does not exceed $100 and his brief on appeal
does not raise a constitutional challenge to the statute under which he was
convicted, we have no jurisdiction in this matter.11 We therefore grant the State’s
motion to dismiss this appeal for want of jurisdiction, dismiss Appellant’s pending
motion alleging inaccuracies in the record as moot, and dismiss this appeal for
want of jurisdiction.
8
Tex. Gov’t Code Ann. § 30.00027(b) (West 2004).
9
See id.
10
See Tex. R. App. P. 38.1(i); Russeau v. State, 171 S.W.3d 871, 881
(Tex. Crim. App. 2005), cert. denied, 548 U.S. 926 (2006); Tong v. State, 25
S.W.3d 707, 710 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053 (2001);
Mosley v. State, 983 S.W.2d 249, 256 (Tex. Crim. App. 1998) (op. on reh’g), cert.
denied, 526 U.S. 1070 (1999).
11
Act of June 17, 2011, 82nd Leg., R.S., ch. 1324, §§ 1, 4, 2011 Tex. Sess.
Law Serv. n.p. (West) (to be codified as amendments to Tex. Code Crim. Proc.
Ann. art. 4.03 and Tex. Gov’t Code Ann. § 30.00027(a) respectively).
4
PER CURIAM
PANEL: DAUPHINOT, J.; LIVINGSTON, C.J.; and GARDNER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 21, 2011
5