Luis Tellez v. State

• Court: Court of Appeals of Texas
• Decided: January 17, 1996
• Docket: 03-95-00678-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-95-00678-CR

Luis Tellez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0942511, HONORABLE CHARLES CAMPBELL, JUDGE PRESIDING

PER CURIAM

This is an appeal from a judgment of conviction for injury to a child. Sentence was imposed on June 23, 1995. Because a motion for new trial was filed, the deadline for perfecting appeal was September 21, 1995. Tex. R. App. P. 41(b)(1). Notice of appeal was not filed until October 23, 1995.

Before us is appellant's "application for leave to appeal out of time." Appellant acknowledges that his formal notice of appeal was untimely, but urges that his desire to appeal was timely manifested by a "jail release card" that appears in the transcript. This card, dated June 23, 1995, directs the sheriff to continue appellant's bond "as an appeal bond" and is signed by the trial court. Appellant contends this card was sufficient to perfect his appeal, citing Sklar v. State, 764 S.W.2d 778, 781 (Tex. Crim. App. 1987).

In Sklar, the defendant did not file a written notice of appeal, but did give an appeal bond. The court held that this was adequate to perfect appeal under former article 44.08. Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 127, 1981 Tex. Gen. Laws 761, 814 (Tex. Code Crim. Proc. Ann. art. 44.08, since repealed). Article 44.08 provided that notice of appeal could be given orally or in writing, and was sufficient if it showed the desire of the defendant to appeal. Appellant concedes that former article 44.08 does not apply to this cause, but argues that the holding in Sklar must be applied to appeals governed by the Texas Rules of Appellate Procedure because the appellate rules were not to abridge or modify the substantive rights of litigants. Act of May 27, 1985, 69th Leg., R.S., ch. 685, § 1, 1985 Tex. Gen. Laws 2472 (now codified at Tex. Gov't Code Ann. § 22.108(a) (West 1988)).

Rule 40(b)(1) requires an independent written notice of appeal. Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); Tex. R. App. P. 40(b)(1). By requiring that notice of appeal be in writing, rule 40(b)(1) does not alter the substantive right to appeal but merely prescribes the procedure by which that right is to be exercised. We hold that the "jail release card" was not sufficient to perfect appeal in this cause. See Shute, 744 S.W.2d at 97 (document that might have been sufficient to perfect appeal under article 44.08 was not sufficient under rule 40(b)(1)).

Alternatively, appellant asks that we deem his notice of appeal timely by invoking our authority to suspend the requirements of the appellate rules. Tex. R. App. P. 2(b). Rule 2(b) does not authorize us to suspend the appellate time limits. Garza v. State, 896 S.W.2d 192 (Tex. Crim. App. 1995). Without a timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d at 97.

Finally, appellant asks that we consider his "application for leave to appeal out of time" as an application for writ of habeas corpus on the ground of ineffective assistance of counsel. This Court does not have original habeas corpus jurisdiction in criminal cases. Tex. Gov't Code Ann. § 22.221(d) (West Supp. 1996). Appellant must await our mandate of dismissal, after which he may file a statutory post-conviction application for writ of habeas corpus seeking an out-of-time appeal. Tex. Code Crim. Proc. Ann. art. 11.07, § 2 (West Supp. 1996).

The application for leave to appeal is overruled. The appeal is dismissed.

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: January 17, 1996

Do Not Publish

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

This is an appeal from a judgment of conviction for injury to a child. Sentence was imposed on June 23, 1995. Because a motion for new trial was filed, the deadline for perfecting appeal was September 21, 1995. Tex. R. App. P. 41(b)(1). Notice of appeal was not filed until October 23, 1995.

Before us is appellant's "application for leave to appeal out of time." Appellant acknowledges that his formal notice of appeal was untimely, but urges that his desire to appeal was timely manifested by a "jail release card" that appears in the transcript. This card, dated June 23, 1995, directs the sheriff to continue appellant's bond "as an appeal bond" and is signed by the trial court. Appellant contends this card was sufficient to perfect his appeal, citing Sklar v. State, 764 S.W.2d 778, 781 (Tex. Crim. App. 1987).

In Sklar, the defendant did not file a written notice of appeal, but did give an appeal bond. The court held that this was adequate to perfect appeal under former article 44.08. Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 127, 1981 Tex. Gen. Laws 761, 814 (Tex. Code Crim. Proc. Ann. art. 44.08, since repealed). Article 44.08 provided that notice of appeal could be given orally or in writing, and was sufficient if it showed the desire of the defendant to appeal. Appellant concedes that former article 44.08 does not apply to this cause, but argues that the holding in Sklar must be applied to appeals governed by the Texas Rules of Appellate Procedure because the appellate rules were not to abridge or modify the substantive rights of litigants. Act of May 27, 1985, 69th Leg., R.S., ch. 685, § 1, 1985 Tex. Gen. Laws 2472 (now codified at Tex. Gov't Code Ann. § 22.108(a) (West 1988)).

Rule 40(b)(1) requires an independent written notice of appeal. Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); Tex. R. App. P. 40(b)(1). By requiring that notice of appeal be in writing, rule 40(b)(1) does not alter the substantive right to appeal but merely prescribes the procedure by which that right is to be exercised. We hold that the "jail release card" was not sufficient to perfect appeal in this cause. See Shute, 744 S.W.2d at 97 (document that might have been sufficient to perfect appeal under article 44.08 was not sufficient under rule 40(b)(1)).

Alternatively, appellant asks that we deem his notice of appeal timely by invoking our authority to suspend the requirements of the appellate rules. Tex. R. App. P. 2(b). Rule 2(b) does not authorize us to suspend the appellate time limits. Garza v. State, 896 S.W.2d 192 (Tex. Crim. App. 1995). Without a timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d at 97.

Finally, appellant asks that we consider his "application for leave to appeal out of time" as an application for writ of habeas corpus on the ground of ineffective assistance of counsel. This Court does not have o