Jackie Leon Teague v. State ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00306-CR

Jackie Leon Teague,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. F38259

MEMORANDUM  Opinion

          Jackie Leon Teague attempts to appeal his conviction of possession of a controlled substance with intent to deliver. After a nonjury trial, the trial court sentenced Teague to 99 years in prison and assessed a $10,000 fine on February 2, 2005.  Teague filed a timely motion for new trial that was overruled by operation of law.  His notice of appeal was filed on July 18, 2005, according to his Motion for Leave to File Out of Time Appeal (which was not filed until August 30, 2005).  We will deny the motion for leave and dismiss the appeal for want of jurisdiction.

Under Texas Rule of Appellate Procedure 26.2, a notice of appeal must be filed within 30 days after the date sentenced is imposed, or within 90 days after the date sentenced is imposed if the defendant files a timely motion for new trial.  Tex. R. App. P. 26.2(a).  A timely notice of appeal is essential to vest this court with jurisdiction.  See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because Teague’s notice of appeal was untimely, we have no jurisdiction over this appeal.  Olivo, 918 S.W.2d at 526.  Accordingly, we dismiss the appeal for want of jurisdiction.[1]  See Tex. R. App. P. 25.2(b), 43.2(f).

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed and motion denied

Opinion delivered and filed September 14, 2005

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[CRPM]

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    [1]       The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus from the Texas Court of Criminal Appeals pursuant to article 11.07 of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004-05); Portley v. State, 89 S.W.3d 188, 189 (Tex. App.—Texarkana 2002, no pet.); Reyes v. State, 883 S.W.2d 291, 293 n.2 (Tex. App.—El Paso 1994, no pet.).  Thus, we deny the motion for an out of time appeal.

t 1986, no pet.); DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Cr.App. 1985).

The State's witnesses on the issue of punishment included a former field worker for the County Juvenile Probation Department, a parole officer for the State Youth Commission and two city police officers who testified that appellant's reputation for being a peaceful and law-abiding citizen was bad. Appellant testified at the punishment phase of the trial, held one year after the offense was committed, that his age was eighteen. In his fifth complaint, appellant urges reversible error in the reputation testimony from the four witnesses just mentioned on grounds that the evidence was of such a nature as to inform the jury of prior juvenile delinquency adjudications against appellant, inadmissible under the provisions of Art. 37.07, Vernon's Annotated Code of Criminal Procedure, at the time the adjudications were made, and that the evidence was of such a nature as to at least inform the jury that appellant had a juvenile record. These arguments are without merit. None of the witnesses was asked about any adjudications of juvenile delinquency or other specific matters. Their testimony concerned only the general reputation of appellant for being a peaceable and law-abiding citizen. There was no evidence introduced before the jury that appellant had a juvenile record. After being qualified, a juvenile officer is as competent as any other witness to testify concerning a defendant's reputation. Ellis v. State, 543 S.W.2d 135, 138 (Tex.Cr.App. 1976); Chandler v. State, 744 S.W.2d 341, 345 (Tex.App.--Austin 1988, no pet.). The fifth point of error is overruled.

In his sixth, seventh and eighth points of error appellant asserts that the trial court erred in permitting impeachment by hearsay testimony of appellant's only witness at the guilt/innocence phase of the trial, in overruling appellant's requested instructions to the jury on the issue of mistake of fact surrounding his knowledge that he possessed a prohibited weapon, and in overruling requested instructions to the jury on self-defense. These complaints are overruled because they were waived when appellant admitted his guilt at the punishment stage of the trial to both crimes for which he has been found guilty.

[T]he present law in Texas is that if a defendant does not testify at the guilt stage of the trial, but does testify at the punishment stage of the trial, and admits his guilt to the crime for which he has been found guilty, he has, for legal purposes, entered the equivalent of a plea of guilty. The law as it presently exists is clear that such a defendant not only waives a challenge to the sufficiency of the evidence, but he also waives any error that might have occurred during the guilt stage of the trial.

DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Cr.App. 1985).

As noticed earlier in this opinion in our discussion of point of error number four, at the punishment phase of the trial appellant admitted the essential elements of the State's case surrounding his shooting of the deceased. He also admitted that the weapon used was "a small .22-caliber sawed-off rifle." A picture in evidence of the firearm appellant used supports the testimony that it was a sawed-off .22-caliber rifle approximately eighteen and one-half inches long, with a barrel about nine inches long. A person commits the offense of possession of a prohibited weapon if he intentionally or knowingly possesses a rifle with a barrel of less than sixteen inches. V.T.C.A., Penal Code, sections 46.01(10) and 46.06.

Furthermore, considered on their merits, appellant's sixth, seventh and eighth points do not present reversible error. The evidence is virtually undisputed that appellant became involved in an argument with Roberta Henderson in front of an apartment complex; that Roberta threatened appellant with a knife; that appellant was carrying the weapon in question concealed under his coat; that Roberta followed appellant and Jerome Tatum down the sidewalk from the apartment complex to a bridge that crossed a nearby creek; that appellant and Jerome Tatum walked across the bridge while appellant and Roberta continued their argument; that as appellant crossed the bridge he removed the gun from under his coat, dropped the clip, picked up the clip and placed it in his pocket; that when he reached the end of the bridge he replaced the clip in the gun, told Tatum, "Rome, I'm going to scare these whores," then turned and fired two shots in the general direction of the apartment complex; and that one of bullets struck and killed the deceased, Joyce Carpenter. Jerome Tatum's testimony was substantially the same. In light of the entire record, if there was preserved error in the court's ruling on the admission of testimony impeaching Jerome Tatum, it is our determination beyond a reasonable doubt that the error made no contribution to appellant's conviction or punishment.

To raise the defensive theory of mistake of fact, evidence must show "that the actor through mistake formed a reasonable belief about a matter of fact." V.T.C.A., Penal Code, Section 8.02. There was no evidence at trial about appellant's beliefs surrounding his posession of the prohibited weapon or the nature of the weapon, although there was testimony concerning Tatum's thoughts about the gun. The evidence did not raise mistake of fact. Montgomery v. State, 588 S.W.2d 950, 953 (Tex.Cr.App. 1979).

When appellant fired the shots he was on one end of the bridge across the creek and Roberta Henderson was on the other end, a distance admitted by appellant of about twenty yards. Appellant could have easily retreated if he was in fear of harm, as he said he was; and in fact he turned his back toward Roberta and walked away after he fired the shots. Furthermore, there was no evidence of immediate need to use deadly force. The evidence did not raise self-defense. Bray v. State, 634 S.W.2d 370, 372-73 (Tex.App.--Dallas 1982, no pet.).

Appellant's points and contentions are overruled. The judgments are affirmed.

                          VIC HALL

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