Michael Jerome Hayes v. State

• Court: Court of Appeals of Texas
• Decided: December 29, 2011
• Docket: 02-11-00510-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00510-CR

MICHAEL JEROME HAYES APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

MEMORANDUM OPINION1 ----------

Appellant Michael Jerome Hayes was convicted by a jury of possession of

one or more but less than four grams of cocaine and was sentenced to thirty-two

years’ confinement. This court affirmed Appellant’s conviction on October 19,

2006. See Hayes v. State, No. 02-05-00431-CR, 2006 WL 2986660 (Tex.

App.—Fort Worth Oct. 19, 2006, pet. ref’d) (mem. op., not designated for

publication). On May 18, 2011, Appellant filed in the trial court a pro se ―Motion

1 See Tex. R. App. P. 47.4. For Reconsideration For A New Trial.‖ The trial court denied the motion by

written order the same day. In October 2011, Appellant filed a notice of appeal in

this court in which he clearly attempts to appeal the order denying his motion for

new trial.

No Texas statute authorizes a direct appeal from the denial of a motion for

new trial independently of the direct appeal from an underlying conviction. See

Tex. Code Crim. Proc. Ann. art. 44.02 (West 2006) (―A defendant in any criminal

action has the right of appeal under the rules hereinafter prescribed . . . .‖)

(emphasis added); see also id. art. 11.07 (West Supp. 2011). We generally have

jurisdiction to consider an appeal by a criminal defendant only from a judgment of

conviction. See McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth

1996, no pet.).

Concerned that we may not have jurisdiction over his appeal of the denial

of his motion for new trial, we sent Appellant a letter on November 15, 2011,

notifying him that the appeal may be dismissed unless, on or before November

28, 2011, he or any party filed a response showing grounds for continuing the

appeal. See Tex. R. App. P. 44.3. Appellant requested and received an

extension of time to respond and filed a response to our letter on December 7,

2011. The response does not, however, show grounds for continuing the appeal.

See Tex. R. App. P. 21.4(a); In re R.V., Jr., 8 S.W.3d 692, 693–94 (Tex. App.—

Fort Worth 1999, pet. denied).

2 We hold that we lack jurisdiction over Appellant’s appeal of the denial of

his motion for new trial. Accordingly, we dismiss his appeal for lack of

jurisdiction. See Tex. R. App. P. 43.2(f).

PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: December 29, 2011