Edward S. Hinojos v. State

• Court: Court of Appeals of Texas
• Decided: June 11, 2003
• Docket: 07-03-00253-CR
• Status: Published

Opinion

NO. 07-03-0253-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JUNE 11, 2003

______________________________

EDWARD SANCHEZ HINAJAS AKA EDWARD SANCHEZ HINOJOSA AKA EDWARD SANCHEZ HINOJOS,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 46,043-D; HON. DON EMERSON, PRESIDING _______________________________

DISMISSAL _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾

Appellant, Edward Sanchez Hinajas, appeals his conviction for Aggravated Assault on a Public Servant/Enhanced. We dismiss the proceeding for lack of jurisdiction.

The judgment indicates that sentence was imposed on March 13, 2003. Appellant then filed a document purporting to be a notice of appeal on May 22, 2003. No motion for new trial was filed.

To be timely, a notice of appeal must be filed within 30 days after the sentence is imposed or suspended in open court or within 90 days after that date if a motion for new trial is filed. Tex. R. App. P. 26.2(a). Thus, appellant's notice of appeal was due to be filed on or about April 14, 2003, but was not filed until May 22, 2003. Furthermore, he did not move for an extension of the deadline.

A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If the notice is not timely, then the court of appeals can take no action other than to dismiss the proceeding. Id. at 523. Because appellant's notice of appeal was untimely filed, we have no jurisdiction to consider the appeal.

Accordingly, the appeal is dismissed.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

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NO. 07-07-0413-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 7, 2008

______________________________

JESUS JARO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

NO. 96856; HONORABLE LAYNE WALKER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINIONAppellant Jesus Jaro appeals from the judgment revoking his deferred adjudication community supervision, adjudicating him guilty of the offense of aggravated assault and sentencing him to eleven years of confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and certifies that there are no non-frivolous issues to appeal. Agreeing with appointed counsel’s conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm the trial court’s judgment.

          In March 2006, appellant was indicted for aggravated assault with a deadly weapon. In January 2007, pursuant to a plea agreement, appellant plead guilty as charged in the indictment, and, in February 2007, received deferred adjudication community supervision for a period of five years, and a fine of $1000. Appellant’s deferred adjudication was conditioned on his compliance with specified terms and conditions.

          In July 2007, the State filed a Motion to Revoke Unadjudicated Probation, alleging two violations of the terms of appellant’s deferred adjudication community supervision. This motion was heard by the court in September 2007. Appellant plead ”true” to the first of the State’s allegations. The court heard evidence from appellant that he failed to report as required by the terms of his community supervision.

          Based on appellant’s plea of “true,” the court revoked appellant’s community supervision, adjudicated appellant guilty of aggravated assault as alleged in the March 2006 indictment and assessed appellant’s punishment at eleven years of confinement in the Institutional Division. The court certified appellant’s right of appeal, and he timely filed notice of appeal.

          Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to Anders in which she certifies that she has diligently reviewed the record and, in her professional opinion, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds on which a non-frivolous appeal arguably can be predicated. The brief discusses the procedural history of the case and the proceedings in connection with the motion to adjudicate guilt. Counsel discusses the applicable law and sets forth the reasons she believes there are no arguably meritorious issues on which to appeal. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a response. The State has filed a response indicating its agreement with counsel’s conclusion.

          In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). 

          In her brief, counsel notes the possibility that appellant might argue he had received ineffective assistance of counsel in these proceedings. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (establishing standard for effective assistance of counsel). We agree with counsel that the record contains no support for such a contention. We also agree with counsel the record provides no reason to doubt that appellant freely, knowingly, and voluntarily entered his plea of “true” to the first allegation contained in the State’s motion to revoke. A plea of “true” to even one allegation in the State’s motion is sufficient to support a judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.–San Antonio 2006, pet. denied).

          Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal from the revocation, adjudication of guilt and sentence. We agree it presents no arguably meritorious grounds for review. Accordingly, we grant counsel's motion to withdraw and affirm the judgment of the trial court.

                                                                James T. Campbell

                                                                         Justice