Justin Murphy v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00105-CR
Justin Murphy, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. C-1-CR-07-200104, HONORABLE JON N. WISSER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Justin Murphy has filed a notice of appeal from the trial court’s
order denying his petition for writ of habeas corpus, in which he sought to collaterally attack his
2007 conviction for the misdemeanor offense of driving while intoxicated.1 The State has filed a
motion to dismiss, arguing that Murphy failed to timely file his notice of appeal.
In a criminal case, the notice of appeal must be filed “within 30 days . . . after the day
the trial court enters an appealable order.”2 Here, the trial court signed its order denying habeas relief
on August 28, 2014. Murphy filed his notice of appeal from that order on February 10, 2015, well
1
The petition was filed while Murphy was facing charges for a second driving-while-
intoxicated offense.
2
Tex. R. App. P. 26.2(a)(1).
beyond the 30-day deadline.3 Accordingly, the notice of appeal is untimely and we have no option
but to dismiss the appeal for lack of jurisdiction.4 We grant the State’s motion and dismiss the
appeal.
__________________________________________
Bob Pemberton, Justice
Before Justices Puryear, Pemberton, and Bourland
Dismissed for Want of Jurisdiction
Filed: June 18, 2015
Do Not Publish
3
On January 27, 2015, Murphy filed a motion for rehearing of the trial court’s order denying
habeas relief, which the trial court denied in a written order dated February 9, 2015. We note
that the appealable order in this case is the order denying habeas relief, not the order denying the
motion for rehearing. See Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex. Crim. App. 1993);
see also Edwards v. State, No. 14-03-01381-CR, 2004 Tex. App. LEXIS 3728, at *3-4 (Tex. App.
—Houston [14th Dist.] Apr. 29, 2004, pet. ref’d) (mem. op., not designated for publication) (“The
appellate timetables for appeals to this court are calculated from the date of sentencing or signing
of the appealable order, not the overruling of a motion for new trial or rehearing.”).
4
See Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
2