Victor Anthony Charles v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 4, 2022
• Docket: 01-21-00480-CR
• Status: Published

Opinion

Opinion issued August 4, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00480-CR ——————————— VICTOR ANTHONY CHARLES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1258695

MEMORANDUM OPINION

Appellant Victor Anthony Charles was convicted on January 24, 2011, for the

felony offense of unlawful possession of a firearm by a felon. On January 25, 2011,

he was sentenced to thirty-five years’ imprisonment. This Court affirmed the trial court’s judgment of conviction in 2013. See Charles v. State, No. 01-11-00084-CR,

2013 WL 5604714 (Tex. App.—Houston [1st Dist.] Oct. 10, 2013, pet. ref’d) (per

curiam) (mem. op. on reh’g, not designated for publication).

On June 10, 2021, Charles filed a motion for new trial. He argued that he

received an affidavit from a witness in his 2011 trial recanting her trial testimony,

which in turn falsified other witnesses’ trial testimony that relied upon the recanting

witness’s testimony. Based on this new evidence, Charles requested that the trial

court vacate his ten-year-old sentence and order a new trial. The trial court did not

rule on the motion for new trial, and it was denied by operation of law. See TEX. R.

APP. P. 21.8(c) (stating that motion for new trial not timely ruled on will be deemed

denied 75 days after sentencing). On August 27, 2021, Charles filed a notice of

appeal. We dismiss the appeal for want of jurisdiction.

Appeals in criminal cases are permitted only when specifically authorized by

statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011);

Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008) (“The standard for

determining jurisdiction is not whether the appeal is precluded by law, but whether

the appeal is authorized by law.”); Thomas v. State, 615 S.W.3d 552, 563 (Tex.

App.—Houston [1st Dist.] 2020, no pet.); TEX. CODE CRIM. PROC. art. 44.02

(providing criminal defendant with “right of appeal under these rules”); TEX. R. APP.

P. 25.2(a)(2) (providing criminal defendant with “right of appeal under Code of

2 Criminal Procedure article 44.02 and these rules”). Generally, a criminal defendant

may appeal only from a final judgment. State v. Sellers, 790 S.W.2d 316, 321 n.4

(Tex. Crim. App. 1990); State v. Jarreau, 563 S.W.3d 477, 491 (Tex. App.—San

Antonio 2018, pet. ref’d); Rabbani v. State, 494 S.W.3d 778, 780 (Tex. App.—

Houston [14th Dist.] 2016, pet. ref’d). Courts of appeals lack jurisdiction to review

interlocutory orders in a criminal appeal unless such jurisdiction has been expressly

granted by statute. Jarreau, 563 S.W.3d at 491; Rabbani, 494 S.W.3d at 780.

Charles’s notice of appeal states that he appeals from the 2011 final judgment.

“In a criminal case [other than a death-penalty case], appeal is perfected by timely

filing a sufficient notice of appeal.” TEX. R. APP. P. 25.2(b) (emphasis added); Taylor

v. State, 424 S.W.3d 39, 43 (Tex. Crim. App. 2014) (stating that filing timely notice

of appeal invokes court of appeals’ appellate jurisdiction). If a notice of appeal is not

timely filed, the appellate court lacks jurisdiction to address the merits of the case

and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d

208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 523

(Tex. Crim. App. 1996). To be timely, a “notice of appeal must be filed” within thirty

days after sentencing or entry of an appealable order. TEX. R. APP. P. 26.2(a)(1). This

period is extended to ninety days if the defendant files a timely motion for new trial.

TEX. R. APP. P. 26.2(a)(2); see TEX. R. APP. P. 21.4(a) (providing that defendant may

file motion for new trial “before, but no later than 30 days after,” sentencing).

3 Charles’s notice of appeal of the final judgment that he filed in August 2021

is untimely by more than ten years. See, e.g., Anderson v. State, 625 S.W.3d 128,

130 (Tex. Crim. App. 2021) (affirming court of appeals judgment dismissing appeal

for lack of jurisdiction because defendant filed notice of appeal twenty-six days late);

Castillo v. State, 369 S.W.3d 196, 202 (Tex. Crim. App. 2012) (stating that notice

of appeal filed one day late “is enough to deprive the appellate court of jurisdiction

to consider appellant’s appeal”). Therefore, we conclude that we lack jurisdiction to

review the trial court’s 2011 final judgment.

Charles’s arguments on appeal indicate that he attempts to appeal from the

denial of the motion for new trial that he filed in June 2021. No Texas statute

authorizes a direct appeal from the denial of a motion for new trial independent of

an appeal from an underlying conviction. Torres v. State, No. 12-22-00004-CR,

2022 WL 399140, at *1 (Tex. App.—Tyler Feb. 9, 2022, no pet.) (per curiam) (mem.

op., not designated for publication) (“An order denying a motion for new trial is not

a separately appealable order.”) (collecting cases); Gipson v. State, No. 01-18-

00207-CR, 2018 WL 2305532, at *1 (Tex. App.—Houston [1st Dist.] May 22, 2018,

no pet.) (per curiam) (mem. op., not designated for publication). Therefore, we lack

jurisdiction to review the denial of Charles’s motion for new trial.

The trial court also lacked jurisdiction to entertain Charles’s untimely motion

for new trial. Texas Rule of Appellate Procedure 21.4 requires a motion for new trial

4 to be filed no later than thirty days after sentencing. TEX. R. APP. P. 21.4; State v.

Arizmendi, 519 S.W.3d 143, 150 (Tex. Crim. App. 2017) (stating that “trial court is

barred from considering a ground raised [in a motion for new trial] outside the thirty-

day period if the State properly objects”); Perez v. State, 261 S.W.3d 760, 770 (Tex.

App.—Houston [14th Dist.] 2008, pet. ref’d). This includes motions for new trial

based on newly discovered evidence. Perez, 261 S.W.3d at 770. If a motion for new

trial is not timely filed, trial courts lack jurisdiction to rule on the motion. Id. at 770–

71. Because Charles filed his motion for new trial more than thirty days after

sentencing, the motion was untimely and the trial court lacked jurisdiction to

consider it. See, e.g., Beathard v. State, 767 S.W.2d 423, 433 (Tex. Crim. App. 1989)

(holding that trial court lacked jurisdiction to decide untimely motion for new trial

based on newly discovered evidence filed more than one year after sentencing);

Perez, 261 S.W.3d at 771 (concluding that motion for new trial based on newly

discovered evidence filed 314 days after sentencing was untimely and trial court

lacked jurisdiction to consider it); Licon v. State, 99 S.W.3d 918, 926 (Tex. App.—

El Paso 2003, no pet.) (“The fact that the [motion for] new trial is based on newly

discovered evidence has no impact on the appellate timetable.”).

In sum, this Court lacks appellate jurisdiction because Charles’s notice of

appeal is untimely, and the denial of a motion for new trial is not independently

reviewable from the underlying judgment of conviction. Moreover, the trial court

5 lacked jurisdiction to consider Charles’s untimely motion for new trial. Accordingly,

we grant the State’s motion to dismiss and dismiss this appeal for want of

jurisdiction.1 See TEX. R. APP. P. 42.3(a), 43.2(f).

PER CURIAM

Panel consists of Chief Justice Radack and Justices Countiss and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).

1 As the State points out in its motion, Charles is not without a remedy. When newly discovered evidence comes to light after the time for filing a motion for new trial has expired, the issue may be raised in a writ of habeas corpus. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996); TEX. CODE CRIM. PROC. art. 11.07.