Jimmy Joseph Newell v. State

• Court: Court of Appeals of Texas
• Decided: April 4, 2018
• Docket: 10-18-00109-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00109-CR

JIMMY JOSEPH NEWELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2017-1307-C2

MEMORANDUM OPINION

Jimmy Joseph Newell appeals the trial court’s Order denying Newell’s Motion to

Rescind Withdrawal Notification.

The right of appeal in criminal cases is conferred by the Legislature, and a party

may appeal only from judgments of conviction or interlocutory orders authorized as

appealable. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P.

25.2(a)(2). We do not have jurisdiction to review interlocutory orders unless jurisdiction has been expressly granted by law. Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App.

1991). See also Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008) ("The

standard for determining jurisdiction is not whether the appeal is precluded by law, but

whether the appeal is authorized by law."). The order about which Newell complains is

not a final conviction, and there is no statutory authorization to appeal the denial of a

motion to rescind. Accordingly, we have no jurisdiction of this appeal, and it must be

dismissed.

Even if we had jurisdiction over such an order, Newell’s notice of appeal is

untimely. Newell was required to file his notice of appeal within 30 days after the day

the trial court rendered the order. See TEX. R. APP. P. 26.2(a)(1). His notice of appeal was

due on March 21, 2018. It was not filed until March 23, 2018. We have no jurisdiction of

an untimely appeal, and this appeal must be dismissed. See Olivo v. State, 918 S.W.2d 519,

522 (Tex. Crim. App. 1996) (no appellate jurisdiction where notice of appeal is untimely).

Notwithstanding that we are dismissing this appeal, Newell may file a motion for

rehearing with this Court within 15 days after this opinion and judgment are rendered if

Newell believes this opinion and judgment are erroneously based on inaccurate

information or documents. See TEX. R. APP. P. 49.1. Moreover, if Newell desires to have

the opinion and judgment of this Court reviewed by filing a petition for discretionary

review, that petition must be filed with the Court of Criminal Appeals within 30 days

Newell v. State Page 2 after either the day this Court’s judgment is rendered or the day the last timely motion

for rehearing is overruled by this Court. See TEX. R. APP. P. 68.2(a).

For the reasons stated, this appeal is dismissed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal dismissed Opinion delivered and filed April 4, 2018 [CR25]

Newell v. State Page 3