Ricardo Cavazos v. State ( 2010 )

NO. 07-10-0391-CR

                                                      NO. 07-10-0392-CR

                                                      NO. 07-10-0393-CR

                                                      NO. 07-10-0394-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                             OCTOBER 6, 2010

                                            ______________________________

                                                          RICARDO CAVAZOS,

Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

Appellee

                                         _________________________________

                       FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NOS. 51,006-C; 51,007-C, 51,008-C, 51,009-C;

HON. PATRICK A. PIRTLE, PRESIDING

_______________________________

Memorandum Opinion 

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Ricardo Cavazos (appellant) filed a document called a “motion for out of time appeal.”  In it, he informs us of his intent to appeal his conviction in various causes of action. However, he also acknowledges that the period in which to perfect a timely appeal lapsed long ago.  Thus, we treat his “motion” as a notice of appeal and dismiss the appeals for want of jurisdiction. 

According to the information before us, the trial court sentenced appellant on March 8, 2006.  At that point, he allegedly told the court that he wanted to appeal.  However, no notice of appeal was filed within the time necessary to effectively effectuate his desire.  Instead, we received the aforementioned “motion” on September 15, 2010. 

It is beyond dispute that a timely notice of appeal is necessary to invoke our jurisdiction. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). To be timely, the notice must be filed within thirty days after sentence was pronounced in open court, unless a timely motion for new trial was filed.  Tex. R. App. P. 26.2.  Irrespective of whether a motion for new trial actually was filed and denied here, a notice tendered more than four years after the trial court sentenced appellant in open court is untimely.  So, we have no jurisdiction over the matter.  State v. Riewe, supra.

Accordingly, the appeal is dismissed for want of jurisdiction.  However, an appellant may petition the Texas Court of Criminal Appeals under article 11.07 of the Code of Criminal Procedure for leave to initiate a belated appeal, as the petitioner apparently did in Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).

                                                                        Brian Quinn

                                                                        Chief Justice

Do not publish.

vidence depicted a white powdery substance found on the floor of appellant’s apartment, which an officer at the scene believed was cocaine.

          Assuming, but without deciding, admission of the investigating officer’s testimony of the field test result was error, we find the error harmless as it did not effect a substantial right of appellant. See Tex. R. App. P. 44.2(b). Error effects a substantial right if it had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Because evidence of cocaine in appellant’s apartment following the Shivers incident was admitted elsewhere in the sentencing phase without objection, any error in allowing the testimony of the investigating officer as to the field test results was harmless. See East v. State, 702 S.W.2d 606, 611 (Tex.Crim.App. 1985) (admission of inadmissible evidence over a valid objection cannot amount to reversible error when the same facts are admitted elsewhere without objection).

          Additionally, during the sentencing phase of trial the State’s evidence of cocaine in appellant’s apartment following the Shivers incident was but a portion of its case for a longer sentence. Through the State’s other evidence, the jury learned of several adjudicated offenses and unadjudicated wrongful acts of appellant including two assaults, burglary, kidnapping, unlawful discharge of a firearm, marijuana possession, theft of copywritten music, failure to pay taxes, possession with intent to deliver cocaine, and bail jumping. Because the error, if any, in admitting the opinion of the investigating officer was harmless, we overrule appellant’s fourth issue.

Conclusion

          Having overruled appellant’s four issues we affirm the judgment of the trial court.

James T. Campbell

Justice

Do not publish.