Wendall L. Simpson v. State ( 2003 )


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  •                                          NO. 07-02-0505-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL E
    MAY 27, 2003
    ______________________________
    WENDELL L. SIMPSON,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    _________________________________
    FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
    NO. 2001-438,539; HON. BRADLEY UNDERWOOD, PRESIDING
    _______________________________
    Memorandum Opinion
    _______________________________
    Before QUINN and REAVIS, JJ., and BOYD, S.J.1
    In three issues, appellant Wendell L. Simpson attempts to appeal from an order
    deferring his adjudication and placing him on community supervision for seven years. He
    had pled guilty to the offense of indecency with a child, and the trial court signed its order
    deferring the adjudication of his guilt and placing him on community supervision on October
    16, 2002. On October 29, 2002, appellant moved for a new trial. The motion was
    1
    John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code
    Ann. §75.00 2(a)(1) (V erno n Su pp. 2003 ).
    overruled on November 29, 2002. Appellant then filed his notice of appeal on December
    5, 2002. We dismiss for want of jurisdiction.
    A notice of appeal must be filed within 30 days after the day sentence is imposed
    or suspended in open court or within 90 days if the defendant timely files a motion for new
    trial. TEX . R. APP. P. 26.2(a). In this instance, appellant did file a motion for new trial, which
    would ordinarily make his notice of appeal timely.
    However, a motion for new trial is not available as a remedy for a defendant who
    receives deferred adjudication. Donovan v. State, 
    68 S.W.3d 633
    , 638 (Tex. Crim. App.
    2002); Murray v. State, 
    89 S.W.3d 187
    , 188 (Tex. App.--Dallas 2002, pet. ref’d). That is
    so because a new trial is a rehearing of a criminal action after the trial court has set aside
    a finding or verdict of guilt. TEX . R. APP. P. 21.1. Furthermore, there is neither a finding or
    verdict of guilty nor an imposition or suspension of a sentence when the adjudication of
    guilt is deferred. Garcia v. State, 
    29 S.W.3d 899
    , 900 (Tex. App.--Houston [14th Dist.]
    2000, no pet.); Hammack v. State, 
    963 S.W.2d 199
    , 200 (Tex. App.--Austin 1998, no pet.).
    Thus, to perfect an appeal from an order deferring his adjudication, an appellant must
    notice his appeal within 30 days after the order is signed. Murray v. State, 89 S.W.2d at
    188; Garcia v. State, 
    29 S.W.3d at 901
    ; Hammack v. State, 963 S.W.2d at 200. Because
    appellant failed to do so here, we have no jurisdiction over the appeal. Olivo v. State, 
    918 S.W.2d 519
    , 522 (Tex. Crim. App. 1996); Rodman v. State, 
    47 S.W.3d 545
    , 548 (Tex.
    App.--Amarillo 2000, no pet.).
    Accordingly, we dismiss the appeal for want of jurisdiction.
    Brian Quinn
    Justice
    Do not publish.
    2