Graves, Rickie Lynn v. State

• Court: Court of Appeals of Texas
• Decided: February 10, 2005
• Docket: 14-05-00034-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed February 10, 2005

Dismissed and Memorandum Opinion filed February 10, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00034-CR

RICKIE LYNN GRAVES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 29,378A

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from an order denying appellant=s out-of-time motion for new trial signed December 7, 2004.  Appellant was convicted of the offense of possession of a controlled substance in a correctional facility.  On April 16, 1998, the trial court sentenced appellant to confinement for fifty years in the Institutional Division of the Texas Department of Criminal Justice.  On direct appeal, this Court affirmed appellant=s conviction.  See Graves v. State, No. 14-98-00592-CR (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (not designated for publication). 

On November 29, 2004, appellant filed a pro se motion for new trial asserting he had been unconstitutionally denied a jury trial at the punishment phase of trial, pursuant to Blakeley v. Washington, 124 S. Ct. 2531 (2004).  The trial court denied the motion by written order signed December 7, 2004.  Appellant then filed a pro se notice of appeal.

Generally, an appellate court has jurisdiction to consider an appeal by a criminal defendant only from 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. 

The denial of a motion for new trial is not a separately appealable order.  Moreover, the record on file with this court does not demonstrate that the trial court had jurisdiction to consider an out-of-time motion for new trial.  Accordingly, we have no jurisdiction over this appeal.

Therefore, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed February 10, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex.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