Diana Marie Sabatine v. State ( 2016 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-16-00098-CR
DIANA MARIE SABATINE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Fannin County, Texas
Trial Court No. CA-2015-7361
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Diana Marie Sabatine was convicted of speeding by a jury in the City of Bonham Municipal
Court, a court of record, and assessed a fine of $200.00. Sabatine filed a notice of appeal to the
County Court at Law of Fannin County, which dismissed her appeal, and Sabatine has appealed to
this Court. We dismiss her appeal for want of jurisdiction.
A defendant may appeal from a judgment or conviction in a municipal court of record.
TEX. GOV’T CODE ANN. § 30.00014(a) (West Supp. 2016). In Fannin County, the proper appellate
court is the county court at law. See id. In order to perfect an appeal from the municipal court of
record to the county court at law, an appellant must (1) file a written motion for new trial setting
forth her points of error with the municipal clerk and (2) give notice of appeal to the municipal
court of record. TEX. GOV’T CODE ANN. § 30.00014(c), (d) (West Supp. 2016). In this case,
Sabatine filed a notice of appeal, but failed to file a motion for new trial with the municipal clerk.
If an appellant does not timely file a motion for new trial with the municipal court of record, she
fails to invoke the appellate court’s jurisdiction. See Yearwood v. State, No. 01-06-00800-CR,
2007 WL 1559856, at *2 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op., not
designated for publication).1
We notified Sabatine that we were concerned that this Court may not have jurisdiction over
her appeal since it appeared that the county court at law was without jurisdiction. We gave her ten
days to file a response showing why the appeal should not be dismissed. In her response, Sabatine
1
Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
2
does not dispute that she failed to file a motion for new trial with the municipal clerk. Rather, she
argues that a written motion for new trial is only required in those cases in which the testimony
has been recorded and a recording of the testimony is available. Without such a transcript, she
argues, it would be impossible to assert all the errors that occurred in the trial court. Sabatine also
asserts that no recording was made of the proceedings.2
Sabatine points to Section 30.00014(b) of the Texas Government Code and Article
45.042(b) of the Texas Code of Criminal Procedure in support of her argument. Neither of these
statutes supports her argument. Section 30.00014(b) provides,
(b) The appellate court shall determine each appeal from a municipal court
of record conviction and each appeal from the state on the basis of the errors that
are set forth in the appellant’s motion for new trial and that are presented in the
clerk’s record and reporter’s record prepared from the proceedings leading to the
conviction or appeal. An appeal from the municipal court of record may not be by
trial de novo.
TEX. GOV’T CODE ANN. § 30.00014(b) (West Supp. 2016). Nothing in this section abrogates the
necessity of filing a motion for new trial. To the contrary, this section limits the appellate court’s
consideration on appeal to “the errors that are set forth in the appellant’s motion for new trial.” Id.
But, of course, the appellate court may not consider the appeal if the appellant does not perfect the
appeal by filing a motion for new trial. See Yearwood, 2007 WL 1559856, at *1.
Regarding appeals from municipal court, Article 45.042 provides that “[u]nless the appeal
is taken from a municipal court of record and the appeal is based on error reflected in the record,
the trial shall be de novo.” TEX. CODE CRIM. PROC. ANN. art. 45.042 (West 2006). Like Section
2
Sabatine made additional arguments in her response that are irrelevant to the jurisdictional argument, which we need
not address.
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30.00014(b), this statute does not address the requirements to perfect an appeal, but rather the
procedure to be followed in the appellate court once the appeal is perfected.
Assuming that the original proceedings were not recorded as Sabatine contends, this would
only provide her with an argument at the county court at law that her appeal should be heard
de novo. See id. However, this does not excuse her from following the statutory requirements to
perfect an appeal. If a statute grants a right of appeal, “one hoping to invoke it must abide by the
statutory requirements creating it.” Ford v. State, 20 S.W.3d 777, 779 (Tex. App.—Amarillo
2000, no pet.).
Having failed to perfect her appeal to the county court at law, that court was without
jurisdiction, except to dismiss the appeal for want of jurisdiction. See Yearwood, 2007 WL
1559856, at *2. If a lower court “lacked jurisdiction, the appellate court has jurisdiction only to
set aside any judgment rendered by the [lower] court and to dismiss” the case. Abbott v. Rankin,
No. 06-07-00149-CV, 2008 WL 5156453, at *1 (Tex. App.—Texarkana Dec. 10, 2008, pet.
denied) (mem. op., not designated for publication).
Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f).
Bailey C. Moseley
Justice
Date Submitted: August 3, 2016
Date Decided: August 19, 2016
Do Not Publish
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