Andrew Wilson McDonald v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2008
• Docket: 14-07-00998-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed August 21, 2008

Dismissed and Memorandum Opinion filed August 21, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00998-CR

ANDREW WILSON MCDONALD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 952523

M E M O R A N D U M   O P I N I O N

This is an attempted appeal of the sentence imposed on October 26, 2007.  Appellant was charged by indictment with the felony offense of aggravated sexual assault.  On October 26, 2007, the trial court dismissed the criminal action in trial court cause number 952523 because appellant was re-indicted in trial court cause number 1089994.  Appellant has filed a notice of appeal in cause number 1089994 and it is currently pending in this court in appellate cause number 14-07-00999-CR.

On May 29, 2008, appellant=s counsel filed a brief in which he concludes the appeal in this cause is wholly frivolous and without merit.  See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967); High v. State, 573 S.W.2d 807, 811-12 (Tex. Crim. App. 1978).  On July 14, 2008, the State filed a motion to dismiss, claiming that there is no appealable order in this cause.  Appellant did not file a response to the State=s motion.

We agree with the State that there is no appealable order in this cause.  Generally, an appellate court only has jurisdiction to consider an appeal by a criminal defendant where there has been a final judgment of conviction.  Workman v. State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961);  McKown v. State, 915 S.W.2d 160, 161  (Tex. App.CFort Worth 1996, no pet.).  The exceptions include:  (1) certain appeals while on deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624, 625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to reduce bond, Tex. R. App. P.  31.1; McKown, 915 S.W.2d at 161;  and (3) certain appeals from the denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.CDallas 1998, no pet.);  McKown, 915 S.W.2d at 161.  There is no final judgment of conviction in trial court cause number 952253.  Because this cause was dismissed and appellant was re-indicted and convicted in trial court cause number 1089994, now pending appeal in this court in cause number 14-07-00999-CR, we find no appealable order in this cause. 

Accordingly, the State=s motion to dismiss is granted and this appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 21, 2008.

Panel consists of Justices Yates, Seymore, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).