Kim, Howard E. v. State

Opinion

Dismissed and Opinion filed February 6, 2003

Dismissed and Opinion filed February 6, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00738-CR

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HOWARD E. KIM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 836,119

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a trial court=s order denying appellant=s motion for new trial.  Because we have no jurisdiction, we dismiss. 

Appellant was charged with the offense of indecency with a child.  On May 2, 2000, after a plea of guilty, the trial court assessed punishment at five years= deferred adjudication probation and a $10,000 fine.  Appellant was also required to serve 180 days in the Harris County Jail as a condition of his probation.  On June 1, 2000, appellant filed a motion for new trial, which was overruled.  Appellant then sought review in this Court alleging the trial court erred in refusing to allow him to withdraw his plea of guilty.  We affirmed the conviction.  See Kim v. State, No. 14-00-00815-CR, 2001 WL 893312 (Tex. App.CHouston [14th Dist.] August 9, 2001, no pet.) (not designated for publication).  Appellant did not file a motion for rehearing or a petition for discretionary review.  Accordingly, on October 12, 2001, this Court issued mandate and the conviction became final. 

On April 8, 2002, appellant filed a motion to modify the conditions of his probation, which was partially granted after a hearing. On April 18, 2002, appellant also  filed a second motion for new trial.  This second motion was based on newly discovered evidence.  See Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Supp. 2002).  Despite the motion for new trial having been filed almost two years after sentencing, the trial court held a hearing and denied the motion on May 21, 2002.  On June 18, 2002, appellant filed a notice of appeal, which specifically stated he was appealing the trial court=s denial of the second motion for new trial.

In a single point of error, appellant complains the trial court erred in refusing to grant his motion for new trial.  A defendant has the right to file a motion for new trial.  See Tex. R. App. P. 21; Oldham v. State, 977 S.W.2d 354, 361 (Tex. Crim. App. 1998).  That right emanates exclusively from the rules of appellate procedure and a party must strictly comply with the rules when seeking such relief.  Oldham, 977 S.W.2d at 361.  Rule 21.4(a) of the Texas Rules of Appellate Procedure states that a motion for new trial must be filed no later than thirty days after the trial court imposes or suspends sentence in open court.  Tex. R. App. P. 21.4(a). 

In this case, the trial court imposed sentence on May 2, 2000, but the second motion for new trial was not filed until May 18, 2002 C almost two years after sentencing.  Thus, the second motion for new trial was untimely and the trial court had no jurisdiction to entertain it.  See Beathard v. State, 767 S.W.2d 423, 433 (Tex. Crim. App. 1989); Hagens v. State, 979 S.W.2d 788, 791 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  When the court lacks jurisdiction, any action it takes on a matter is void and should be regarded as if it never happened.  Hagens, 979 S.W.2d at 791. 

Accordingly, we dismiss the appeal for want of jurisdiction.^[1] 

PER CURIAM

Judgment rendered and Opinion filed February 6, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

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

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^[1]              As the State points out, appellant is not without a remedy.  When newly discovered evidence comes to light after the time for filing a motion for new trial has expired, the issue may be raised in a writ of habeas corpus.  Ex parte Elizondo, 974 S.W.2d 202 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2002).