Castillo v. State

689 S.W.2d 443

• Court: Court of Criminal Appeals of Texas
• Decided: October 24, 1985
• Docket: 014-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of arson. The Court of Appeals reversed the conviction upon finding the trial court erroneously overruled appellant’s motion to quash. Castillo v. State (Court of Appeals-San Antonio). The State brought petition for review by this Court on two issues: (1) whether the Court of Appeals correctly decided the ground of error, and (2) whether the Court of Appeals had jurisdiction of the case. Review was granted on both issues.

We first address the jurisdictional issue. The State argues the Court of Appeals lacked jurisdiction because the notice of appeal was late. The record reflects that appellant was sentenced on August 20, 1981. At that time Art. 44.08, V.A.C.C.P., required notice of appeal be given within 10 days of sentencing. The record reflects that appellant was so informed in open court at the time of sentencing and that he informed the court, through counsel, that he did not want to appeal. The record before this Court does not reflect that notice of appeal was ever given. The State’s brief recites that the record reflects oral notice of appeal was given on September 4, 1981, but the record does not contain the page referred to by the State. Appellant apparently agrees that notice of appeal was late, because he argues the Court of Appeals impliedly found good cause for late notice of appeal.

We will address appellant’s argument of good cause in a moment, but we first find there was no timely notice of appeal, first because the record reflects no notice of appeal whatsoever, and alternatively, assuming arguendo that notice of appeal was given on September 4, such notice of appeal would have been 15 days after sentencing, five days after expiration of the time allowed for notice of appeal in effect at the time of sentencing and at the time of expiration of the permitted period for giving notice of appeal.

Appellant argues the Court of Appeals found good cause for late notice of appeal under Art. 44.08(e), V.A.C.C.P. That provision, however, became effective September 1,1981, which was after the time for giving notice of appeal in this case had expired. Specifically, Art. 44.08(e), provides:

“For good cause shown, the court of appeals may permit the giving of notice of appeal after the expiration of such 15 days.”

This amendment was part of the act giving criminal appellate jurisdiction to the courts of appeals. Acts 1981, 67th Leg., ch. 291. Also, as part of that amendment, the time for giving notice of appeal was extended to 15 days, measured from sentencing or overruling of motion for new trial. Art. 44.08(b) and (c), supra. The amendment did not revive a right to appeal that had already expired. To hold otherwise would mean the courts of appeals would have the authority at this date to find good cause for late notice of appeal in any final conviction no matter how long ago the conviction became final. We do not believe the legislature intended such a result. We hold the authority granted by Art. 44.08(e), supra, may be exercised only in those cases in which “the expiration of such 15 days,” as referred to in the statute, was an event occurring on or after the effective date of the act, i.e., September 1, 1981. See Barnes v. State, 644 S.W.2d 1 (Tex.Cr.App.1982); McCarty v. State, 557 S.W.2d 295 (Tex.Cr.App.1977); Ex parte Young, 517 S.W.2d 288 (Tex.Cr.App.1974). Accordingly, the Court of Appeals was without authority to act under Art. 44.08(e) in this case and we will not presume that it did so. Appellant’s argument is without merit.

Timely notice of appeal is jurisdictional. E.g., Pittman v. State, 546 S.W.2d 623 (Tex.Cr.App.1977); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Newton v. State, 482 S.W.2d 215 (Tex.Cr.App.1972). The record does not reflect timely notice of appeal. The appeal therefore must be dismissed.

The judgment of the Court of Appeals is reversed and the cause remanded with directions to dismiss the appeal.