Shute v. State

744 S.W.2d 96, 1988 Tex. Crim. App. LEXIS 2, 1988 WL 202

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant entered a plea of not guilty before the court to the charge of attempted capital murder. He was convicted and the court assessed punishment at imprisonment for thirty-five years. In an unpublished opinion, the Court of Appeals dismissed for want of jurisdiction. Shute v. State, No. C14-86-840 CR (Tex.App.—Houston [14th Dist.] 1986). Appellant’s petition for discretionary review was granted, challenging the ruling of the Court of Appeals on the sufficiency of appellant’s notice of appeal.

Appellant was sentenced on September 30, 1986. Appellant gave oral notice of appeal on September 30, 1986. The oral notice was reduced to writing by the clerk of the court on October 8,1986. An examination of the writing executed by the clerk shows that the form used was merely an acknowledgment by the court of receipt of appellant’s oral notice. It was not an independent written notice of appeal as required by Tex.R.App.Pro. 40(b)(1). While such notice may have been sufficient under the prior statute, Article 44.08(a), the current Rules of Appellate Procedure embody the requirement of written notice. Tex.R.App.Pro. 40(b)(1).

Appellant had until October 30, 1986, to file his written notice of appeal. Tex.R. App.Pro. 40(b)(1), 41(b)(1). No motion for new trial was filed. No timely motion for extension of time to file the notice of appeal was filed. No out-of-time appeal has been granted. The only written notice of appeal on record was filed on November 19,1986, more than two weeks late. In his brief, appellant concedes he knew the requisites of the Rules of Appellate Procedure but held mistaken beliefs as to the sufficiency of his actions. In the absence of a timely, written notice of appeal, the lower court was correct in stating they were without jurisdiction to entertain the appeal. Martin v. State, 654 S.W.2d 800 (Tex.App.—Houston [14th Dist.] 1983, no pet.).

We have carefully reviewed the briefs of the respective parties and the opinion of the Court of Appeals and have determined the decision of the Court of Appeals correct. The judgment of the Court of Appeals is affirmed.

DUNCAN, J., not participating. MILLER, J., concurs in the result.