Alisha Rena McKinney v. State

• Court: Court of Appeals of Texas
• Decided: February 6, 2019
• Docket: 05-19-00037-CR
• Status: Published

Opinion

DISMISS and Opinion Filed February 6, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00037-CR

ALISHA RENA MCKINNEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-40185-P

MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Whitehill Alisha Rena McKinney appeals her August 7, 2017 conviction for tampering with a

government record by making, presenting, and using a Texas driver’s license with knowledge of

its falsity. After appellant pleaded guilty without a plea bargain agreement, the trial court found

her guilty and assessed punishment at ten years in prison.

Appellant filed her notice of appeal in the trial court on March 9, 2018; it was forwarded

to this Court on January 9, 2019. After the clerk’s record was filed, we sent the parties a

jurisdictional letter, questioning whether the Court had jurisdiction over the appeal.

In her letter brief, appellant states she is attempting to appeal the trial court’s denial of her

motion for shock probation and concedes this Court lacks jurisdiction to do so. See Houlihan v.

State, 579 S.W.2d 213, 216 (Tex. Crim. App. 1979); Dodson v. State, 988 S.W.3d 833, 834 (Tex. App.—San Antonio 1999, no pet.) (holding that appellate court lacked jurisdiction to hear appeal

from denial of motion for shock probation); Soto v. State, No. 05-00-00092-CR, 2000 WL 869352,

at *1 (Tex. App.—Dallas June 30, 2000, no pet., not designated for publication) (same).

In its letter brief, the State agrees with appellant’s statement that the Court lacked

jurisdiction to consider the denial of a motion for shock probation but also notes that appellant’s

notice of appeal was untimely filed.

As previously noted, the denial of a motion for shock probation is not an appealable order.

See Houlihan, 579 S.W.2d at 216; Dodson, 988 S.W.3d at 834; Soto, 2000 WL 869352, at *1.

With respect to appellant’s underlying conviction, the trial court found appellant guilty and

assessed punishment on August 7, 2017. Absent a timely motion for new trial, appellant’s notice

of appeal was due no later than September 6, 2017. See TEX. R. APP. P. 26.2(a)(1). However,

appellant’s notice of appeal was filed in the trial court on March 9, 2018. Because it was filed

outside the thirty-day period allowed by rule 26.2, the notice of appeal was untimely.

For these reasons, we dismiss this appeal for lack of jurisdiction.

/Bill Whitehill/ BILL WHITEHILL JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 190037F.U05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ALISHA RENA MCKINNEY, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05-19-00037-CR V. Trial Court Cause No. F17-40185-P. Opinion delivered by Justice Whitehill, THE STATE OF TEXAS, Appellee Justices Molberg and Reichek participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered February 6, 2019

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