David Lee Rushing v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-505-CR





DAVID LEE RUSHING,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY

NO. 94-00548, HONORABLE R. L. BLANN, JUDGE PRESIDING

PER CURIAM

David Lee Rushing seeks to appeal from a judgment of conviction for possession of marihuana. The punishment is a $200 fine.

The transcript contains a written waiver of appeal signed by appellant and the trial judge. This document, which reflects a knowing and voluntary waiver of the right to appeal, was signed on the day judgment and sentence were imposed in open court. A defendant who knowingly and intelligently waives his right to appeal may not thereafter appeal without the consent of the trial court. Ex parte Dickey, 543 S.W.2d 99 (Tex. Crim. App. 1976). See also Hurd v. State, 548 S.W.2d 388 (Tex. Crim. App. 1977); Reed v. State, 516 S.W.2d 680 (Tex. Crim. App. 1974). There is nothing in the record to indicate that appellant sought or obtained the permission of the trial court to pursue this appeal.

Sentence was imposed in this cause on August 9, 1994. No motion for new trial was filed. Notice of appeal was filed on September 9, one day after it was due. Tex. R. App. P. 41(b)(1). No extension of time for filing notice of appeal was requested. Tex. R. App. P. 41(b)(2). There is nothing in the record to indicate that notice of appeal was properly mailed to the district clerk within the time prescribed by rule 41(b)(1). Tex. R. App. P. 4(b). Without a timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988).

The appeal is dismissed.

Before Justices Powers, Aboussie and B. A. Smith

Appeal Dismissed

Filed: October 26, 1994

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