Mendez v. State

914 S.W.2d 579, 1996 Tex. Crim. App. LEXIS 6, 1996 WL 15469

• Court: Court of Criminal Appeals of Texas
• Decided: January 17, 1996
• Docket: 0319-95
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant pled nolo contendere and was convicted in a bench trial of aggravated assault with a deadly weapon. After a hearing the trial judge set punishment at 6 years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and a $500.00 fine. The Court of Appeals reversed the conviction and remanded for a new trial. Mendez v. State, 892 S.W.2d 81 (Tex.App. —Texarkana 1994). We granted the State’s petition for discretionary review in order to address whether the Court of Appeals erred in holding that it had jurisdiction to decide this appeal because appellant’s notice of appeal was not timely filed. We reverse the judgment of the Court of Appeals and remand to dismiss this appeal for lack of jurisdiction.

Appellant was sentenced on November 24, 1993. Accordingly, his motion for new trial was due on December 24, 1993. December 24, 1993, was a Friday, and the courthouse was closed. Appellant’s counsel filed a motion for new trial on Monday, December 27, 1993, the next day that the courthouse was open. The State contends that appellant’s motion for new trial was untimely as December 24 is not a legal holiday and was not a Saturday or Sunday in 1993.

The Court of Appeals held that appellant’s motion for new trial was timely by applying a Texas Supreme Court ease, Miller Brewing Co. v. Villarreal, 829 S.W.2d 770, 772 (Tex. 1992), which said that a legal holiday included a day on which the courthouse was closed by direction of the county commissioners’ court. Although the Court of Appeals recognized in Martinez v. State, 511 S.W.2d 934, 935 (Tex.Cr.App.1974) that December 24 is not a legal holiday, it simply dismissed this precedent as having “not been cited for this proposition since 1975.”¹

A motion for new trial if filed may be filed prior to, or shall be filed within 30 days after, date sentence is imposed or suspended in open court. Tex.R.App.P. 31(a)(1). In computing the time period “the last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period extends to the end of the next day which is not a Saturday, Sunday or legal holiday.” Tex.R.App.P. 5(a).

By the express provisions of the Texas Government Code, a legal holiday includes only a national holiday under Section 662.003(a) or a state holiday under Section 662.003(b)(l)-(6). December 24 is not a legal holiday as that date is set out in Texas Government Code Section 662.003(b)(8). We see no reason to overrule a case that has been .the law for some twenty years or to make an exception to the express written provision of a statute.

We hold that December 24 is not a legal holiday, and therefore, appellant’s motion for new trial was untimely. Since appellant’s motion for new trial was untimely, his notice of appeal was due on December 24, 1993. See Tex.R.App.P. 41(b)(1). Appellant’s notice of appeal was not filed until February 22, 1994. Therefore, appellant’s notice of appeal was untimely filed.

We reverse the judgment of the Court of Appeals and remand to the Court of Appeals to dismiss this appeal for lack of jurisdiction.

CLINTON and OVERSTREET, JJ., dissent. MANSFIELD, J., I join the opinion of the Court and note that appellant, upon finding the courthouse was closed, could have timely filed his appeal by mailing it that day. Tex. R.App.Proc. 4(b).

1 . A review of the former and current statutes reveals that the Government Code essentially re-codified the statute under which we decided the Martinez case. We will therefore construe this Government Code provision the same as the pri- or statute.