Robert Earl Marzett v. State

Opinion

Dismissed and Opinion Filed October 5, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00953-CR

ROBERT EARL MARZETT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 1 Collin County, Texas Trial Court Cause No. 001-85822-2014

MEMORANDUM OPINION Before Chief Justice Wright and Justices Myers and Brown Opinion by Chief Justice Wright Robert Earl Marzett was convicted by the Plano Municipal Court of Record of operating

a motor vehicle without registration for the vehicle and fined $90. He appealed to the County

Court at Law No. 1. The County Court at Law No. 1 affirmed the municipal court on May 18,

2015. On June 17, 2015 appellant filed a motion and an amended motion to extend time to file a

motion for rehearing. Appellant did not tender a motion for rehearing. Rather, the extension

motion sought an extension until July 17, 2015 to file a motion for rehearing. On July 15, 2015,

appellant filed a notice of appeal. Because the notice of appeal was untimely as to the May 18,

2015 judgment date, we sent the parties a letter questioning our jurisdiction over the appeal.

Appellant responded that his notice of appeal was timely because it was filed within

thirty days of the County Court at Law No. 1’s June 19, 2015 denial of his amended motion to extend time to file a motion for rehearing.1 Appellant asserts that he did not receive notice that

the trial court had denied the motion, and he filed his notice of appeal on July 15, 2015 in

accordance with Texas Rule of Appellate Procedure 26.2. The State did not respond to our

jurisdictional inquiry. We conclude we lack jurisdiction over the appeal.

“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id.

at 523. “The standard to determine whether an appellate court has jurisdiction to hear and

determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is

authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting

Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). The right to appeal in a

criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex.

Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX.

CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R.

APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by

criminal defendants only after conviction or the entry of an appealable order. See Wright v.

State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.).

To invoke an appellate court’s jurisdiction, the party appealing must file a timely notice

of appeal. See Olivo, 918 S.W.2d at 522. Absent a timely, effective motion for new trial, a

notice of appeal is due within thirty days of the date sentence is suspended or imposed in open

court or an appealable order is entered. See TEX. R. APP. P. 26.2(a)(1). If a timely notice of

appeal is not filed, an appellate court has no authority to take any action except to dismiss an

1 The clerk’s record does not contain an order denying appellant’s motion and amended motion to extend time to file a motion for rehearing. Rather, there is a June 19, 2015 entry on the case summary that states “Judge’s Docket Entry”, “Appellant’s Amended Motion to Extend Time to File Motion for Rehearing Denied.”

–2– appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo,

918 S.W.2d at 523.

We need not address whether a timely motion for rehearing would be effective to extend

the time to file a notice of appeal from a county court at law judgment affirming a municipal

court of record. See, e.g., Swain v. State, 219 S.W.3d 878, 880 (Tex. App.––Fort Worth 2010, no

pet.) (per curiam) (motion for new trial not effective to extend time to file notice of appeal from

county criminal court’s judgment affirming municipal court of record). Appellant never filed a

motion for rehearing. Rather, thirty days after the County Court at Law No. 1 issued its judgment

affirming the municipal court, appellant filed a motion seeking a thirty-day extension of time to

file a motion for rehearing. He did not file a notice of appeal until twenty-six days after the date

the docket sheet indicates the County Court at Law No. 1 denied the extension motion.

In this case, the operative date from which the deadline for appellant’s notice of appeal

ran was May 18, 2015, the date of the County Court at Law No. 1’s judgment affirming the

municipal court. See TEX. R. APP. P. 26.2(a)(1). Appellant did not file any post-judgment

motion that would have been effective to extend the time to file his notice of appeal. Therefore,

his notice of appeal was due by June 17, 2015. See id. Appellant’s July 15, 2015 notice of

appeal is untimely, leaving us without jurisdiction over the appeal. See Slaton, 981 S.W.2d at

210; Olivo, 918 S.W.2d at 523.

We dismiss the appeal for want of jurisdiction.

Do Not Publish TEX. R. APP. P. 47 /Carolyn Wright/ 150953F.U05 CAROLYN WRIGHT CHIEF JUSTICE

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROBERT EARL MARZETT, Appellant On Appeal from the County Court at Law No. 1, Collin County, Texas No. 05-15-00953-CR V. Trial Court Cause No. 001-85822-2014. Opinion delivered by Chief Justice Wright, THE STATE OF TEXAS, Appellee Justices Myers and Brown participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered October 5, 2015.

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