Adam Martinez v. State ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00142-CR

Adam Martinez,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2004-522-C

MEMORANDUM  Opinion

On May 4, 2007, Appellant Adam Martinez filed a notice of appeal of the trial court’s June 5, 2006 order that, in effect, garnishes funds from Martinez’s inmate trust account to satisfy court costs from his May 25, 2004 robbery conviction.  See Tex. Gov’t Code Ann. § 501.014(e) (Vernon 2004).

We notified Martinez that his appeal was subject to dismissal for want of jurisdiction because his notice of appeal was not timely filed.  See Tex. R. App. P. 26.1, 26.2(a)(1); see also Abdullah v. State, 211 S.W.3d 938 (Tex. App.—Texarkana 2007, no pet.) (treating appeal of similar order as civil appeal).  In a response, Martinez asserts that he can bring a restricted appeal because the State ceased garnishing his funds in February 2007, which he says in effect nonsuited its claim on Martinez’s inmate trust account funds.  See Tex. R. App. P. 26.1(c), 30.  Martinez asserts that his notice of appeal was filed within six months after the purported nonsuit, which he claims is not final to this day because an order granting nonsuit has not been entered and such an order triggers appellate deadlines.  See In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997).

We are not persuaded by Martinez’s nonsuit analogy that we have jurisdiction of this appeal; any relief must be sought in a different proceeding.  Cf., e.g., In re Keeling, --- S.W.3d ---, 2007 WL 1628786 (Tex. App.—Waco June 6, 2007, orig. proceeding) (granting mandamus relief on similar order for payment of court costs out of inmate trust fund account). This appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray concurs in the judgment only, without a separate opinion.)

Appeal dismissed

Opinion delivered and filed August 1, 2007

Do not publish

[CRPM]