Roy Jon v. Julie Spivey

• Court: Court of Appeals of Texas
• Decided: July 2, 2002
• Docket: 06-02-00075-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00075-CV ______________________________

ROY JON, Appellant

V.

JULIE SPIVEY, ET AL., Appellees

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On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 01-C-0833-202

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Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N

Roy Jon appeals the dismissal of his suit against Julie Spivey, Zelda Glass, and the Texas Department of Criminal Justice, Institutional Division. The trial court signed the order of dismissal January 23, 2002; therefore, the notice of appeal had to be filed within thirty days (February 22, 2002), or within ninety days (April 23, 2002) if Jon filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law. Tex. R. App. P. 26.1(a).

Jon filed his notice of appeal May 30, 2002. The record shows Jon filed a motion to reform the judgment February 28, 2002. That motion was untimely because it was not filed within thirty days of the date the judgment was signed. Tex. R. Civ. P. 329b(g). Therefore, Jon had to file his notice of appeal by February 22, 2002.

There is no indication the mailbox rule makes Jon's motion to reform the judgment timely. See Tex. R. App. P. 9.2(b). We are unable to determine the date on which John signed the motion, but even if it were timely, his notice of appeal was still untimely because it was filed May 30, 2002, over a month after the date on which it was due, April 23, 2002. Therefore, this Court is without jurisdiction over the appeal.

The appeal is dismissed for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: July 1, 2002

Date Decided: July 2, 2002

Do Not Publish

emorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Jack George Feltman appeals from his conviction by the trial court, on his plea of guilty, for burglary of a building. The trial court sentenced Feltman to eighteen years' imprisonment. We dismiss Feltman's appeal for want of jurisdiction.

            The trial court filed a certification, in accordance with Rule 25.2(a)(2), that "the defendant has waived the right of appeal." Rule 25.2(a)(2) states, in pertinent part:

(2) . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order.

Tex. R. App. P. 25.2(a)(2). If a certification showing that the appellant has the right to appeal is not made a part of the appellate record, we must dismiss the case unless the record affirmatively indicates that the appellant may have the right to appeal. Tex. R. App. P. 25.2(d); see Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005); Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005). We have examined the clerk's record to determine whether the trial court's certification is defective. See Dears, 154 S.W.3d at 613. Nothing in the record indicates the certification is defective. This Court lacks jurisdiction over this appeal.

            We dismiss the appeal for want of jurisdiction.

                                                                        Jack Carter

Date Submitted:          August 31, 2006

Date Decided:             September 1, 2006