Ex Parte David Infante v. State ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00021-CR

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EX PARTE: DAVID INFANTE

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On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 16,842-2001-A

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

          David Infante was charged in six separate cases: there were four separate indictments charging him with aggravated sexual assault, and there were two separate indictments charging him with indecency with a child. The State elected to try the cases separately and first proceeded in trial court cause number 16,843-2001-A. The jury found Infante "not guilty" of aggravated sexual assault in that case. Infante subsequently filed applications for pretrial writs of habeas corpus, alleging that collateral estoppel and double jeopardy principles barred prosecution of the remaining five cases. The trial court denied relief in each case, and Infante now appeals.

          This appeal concerns only the charge of aggravated sexual assault in trial court cause number 16,842-2001-A. The five causes were appealed separately, but the parties have briefed the issues together.

          Since the briefs and arguments raised therein are identical in each appeal, for the reasons stated in Ex parte Infante, No. 06-04-00020-CR, we likewise affirm the trial court's judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      November 4, 2004

Date Decided:         November 5, 2004

Do Not Publish

n style="font-family: 'Arial', sans-serif">          There are a number of problems with this attempted appeal.

          First, the case became final when the agreed judgment was signed September 9, 2004 (not 2005). Rule 26.1 of the Rules of Appellate Procedure requires the notice of appeal to be filed within thirty days of that date in order to invoke the jurisdiction of this Court. Tex. R. App. P. 26.1. None was. The notice of appeal was also well outside the six-month time frame permitted for bringing a restricted appeal. See Tex. R. App. P. 26.1(c).

          Second, if we assumed that Lipscomb was attempting to appeal from the March 29, 2005, order denying his motion for summary judgment, even if it were appealable, the notice of appeal was filed after the expiration of the thirty-day time frame for a regular appeal and after the expiration of the six-month time frame for a restricted appeal. See id.

          Third, even if the trial court's plenary power were still alive (which is impossible on these facts), the denial of a motion for summary judgment is not an appealable order. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding).

          In short, it is clear that the appealable order in this case was signed September 9, 2004. The notice of appeal was untimely and does not invoke the jurisdiction of this Court.

          We dismiss the appeal for want of jurisdiction.

                                                                Donald R. Ross

                                                                Justice

Date Submitted:      January 24, 2006

Date Decided:         January 25, 2006