Dennis Dewayne Cumby v. State ( 1996 )

Cumby-DD v. State

IN THE

TENTH COURT OF APPEALS

No. 10-96-108-CR

     DENNIS DEWAYNE CUMBY,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,084-CR

MEMORANDUM OPINION

      Dennis Cumby pleaded guilty to aggravated sexual assault and the court assessed the agreed punishment of twenty years' incarceration. Tex. Penal Code Ann. § 22.021 (Vernon 1994 & Supp. 1996). Because Cumby failed to timely file a notice of appeal, we dismiss his appeal for want of jurisdiction. Tex. R. App. P. 41(b)(1); Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex. Crim. App. 1993).

      To appeal from his conviction and punishment, Cumby must have filed a notice of appeal within thirty days "after the day sentence [was] imposed or suspended in open court" or within ninety days if a timely motion for new trial is filed. Tex. R. App. P. 41(b)(1). According to the judgment in the transcript, his sentence was imposed on March 18, 1996. He filed his notice of appeal on April 24, the thirty-seventh day after sentencing. There is no indication in the transcript that he filed a motion for a new trial. Thus, his notice was seven days late. Id.; Rodarte, 860 S.W.2d at 109-10. He did not file a motion for an extension of time to file the notice of appeal. Tex. R. App. P. 41(b)(2); Olivo v. State, No. 442-95, slip op. at 4, 1996 WL 135625 *2-3 (Tex. Crim. App. March 27, 1996). Because he did not file a timely motion for a new trial and his notice of appeal was not filed within thirty days of sentencing, we do not have jurisdiction over his appeal. Tex. R. App. P. 41(b)(1); Rodarte, 860 S.W.2d at 109-10.

      We notified Cumby of this jurisdictional defect by letter on May 30 sent to the address he listed on the notice of appeal. Tex. R. App. P. 83. He has not responded to our notice.

      Thus, we dismiss this cause for want of jurisdiction. Id. 41(b)(1); Rodarte, 860 S.W.2d at 109-10.

                                                                               PER CURIAM

Before Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed June 26, 1996

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G Times', serif">He contends in a sole point of error that his first case, No. 27897, was timely filed in the trial court because it was filed within sixty days of the prison's disciplinary hearing.

      We do not agree for the reason that this issue has been decided finally in Appellant's first round of litigation wherein the matter was finally decided by the Supreme Court of Texas when said Court denied a writ of error on May 22, 1995, as hereinbefore pointed out. That is to say, Appellant's second round of litigation is barred by the doctrine of res judicata. See Tex. Jur. III, Judgments, § X, Effect of Judgment; Res Judicata, ¶¶ 351, 456. We do not reach Appellant's first point of error for the reasons stated.

      Judgment of the trial court is affirmed.

                                                                               JOHN A. JAMES, JR.

                                                                               Justice (Retired)

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice James (Retired)

Affirmed

Opinion delivered and filed January 24, 1996

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