Miles Davis Washington v. State

• Court: Court of Appeals of Texas
• Decided: September 30, 2010
• Docket: 14-10-00887-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 30, 2010.

In The

Fourteenth Court of Appeals

____________

NO. 14-10-00887-CR

MILES DAVIS WASHINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1267951

MEMORANDUM OPINION

Appellant entered a guilty plea, without an agreed recommendation on punishment, to possession with intent to deliver between one and four grams of cocaine.  On July 8, 2010, the trial court deferred a finding of guilt, placed appellant on community supervision for six years, and assessed a $500 fine.  Appellant filed a motion for new trial and notice of appeal on September 3, 2010.

We lack jurisdiction over this appeal.  Appellant’s notice of appeal is untimely.  A defendant’s notice of appeal must be filed within thirty days after the trial court has entered an appealable order when the defendant has not filed a timely motion for new trial.  See Tex. R. App. P. 26.2(a)(1).  Because there has been no finding of guilt, a motion for new trial is not available at the time adjudication of guilt is deferred.  See Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App .2002); see also Tex. R. App. P. 21.4 (requiring motion for new trial to be filed no later than 30 days after the trial court imposes or suspends sentence).  A motion for new trial is not effective to extend the time for filing a notice of appeal when adjudication of guilt is deferred.  See Garcia v. State, 29 S.W.3d 899, 901 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and the court can take no action other than to dismiss the appeal.  Id.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Chief Justice Hedges and Justices Yates and Sullivan.

Do Not Publish — Tex.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