William Lewis v. State ( 2012 )

Opinion issued June 28, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00761-CR
NO. 01-10-00762-CR
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WILLIAM SOLOMON LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case Nos. 59246 and 59247
MEMORANDUM OPINION ON REHEARING
On March 31, 2011, this Court, acting sua sponte, dismissed the appeals
brought by appellant, William Solomon Lewis. Lewis filed a motion for rehearing,
and this Court requested a response from appellee, the State of Texas. We grant
appellant’s motion to withdraw our opinion and judgment, vacate our March 31,
2011 judgments, withdraw our March 31, 2011 opinion, and issue this opinion in
its place.
We dismiss each appeal for want of jurisdiction.
Background
Appellant, William Solomon Lewis, was charged under two different cause
numbers in Brazoria County, Texas. Appellant represents that he was acquitted
under one cause and that the other cause is still pending. On August 31, 2009, the
trial court for both cases issued an order for payment of appellant’s attorney’s fees.
The order required the fees to be paid from money deposited in the trial court’s
registry.
On August 23, 2010, appellant filed a notice of appeal for each cause,
challenging the trial court’s award of attorney’s fees.1 On March 31, 2011, this
Court, acting sua sponte, dismissed the appeals, holding that appellant’s notices of
1
It is not entirely clear from the record whether the document filed by appellant was
intended to be a notice of appeal of the trial court’s August 31, 2009 order or a
motion to challenge the propriety of the amount awarded in that order. This
ambiguity was resolved by appellant on appeal. In his motion for rehearing,
appellant agrees with this Court’s characterization—in our previous opinion—of
the document as a notice of appeal.
appeal were not timely.2 Appellant filed a timely motion for rehearing on May 4,
2011.
Appellate Jurisdiction
The notice of appeal in a criminal matter must be filed by a defendant
“within 30 days after the day sentence is imposed or suspended in open court, or
after the day the trial court enters an appealable order.” TEX. R. APP. P. 26.2(a)(1).
When the appeal concerns a matter other than the imposition or suspension of a
sentence, the appellate timetable begins with the signing of the particular order.
Rodarte v. State, 860 S.W.2d 108, 109, 110 (Tex. Crim. App. 1993).
The order about which appellant complains was signed on August 31, 2009.
He did not file his notice of appeal until almost a year later. In his motion for
rehearing, appellant argues he had a year to appeal the order. He bases this
argument on article 103.008 of the Texas Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 103.008(a) (Vernon 2006). Pursuant to article
103.008, a defendant has one year after the date of the final disposition of a case in
which costs were imposed to file a motion seeking to correct any error in the costs.
Id.
The August 31, 2009 order was signed under the authority of article 26.05 of
the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art.
2
See Lewis v. State, 01-10-00761-CR, 01-10-00762-CR, 2011 WL 1234552 (Tex.
App.—Houston [1st Dist.] Mar. 31, 2011, no pet.).
26.05(g) (Vernon Supp. 2011). Pursuant to article 26.05, a court may order a
defendant to pay all or part of the costs of legal services provided in circumstances
when the State is otherwise obligated to pay for those services. Id. The court can
order the defendant “to pay during the pendency of the charges or, if convicted, as
court costs the amount that it finds the defendant is able to pay.” Id.
Appellant has not been convicted under either cause. It is unclear, then,
whether the order to pay for legal services from money deposited in the court’s
registry is properly characterized as a court cost. See id. It is also unclear whether
the Legislature intended for an order to pay attorney’s fees under article 26.05 to
be part of the challengeable court costs under article 103.008.
We do not need to resolve either of these matters in this opinion, however.
Assuming without deciding that the order to pay for legal services constitutes a
court cost and further assuming without deciding that it is within the category of
costs that can be challenged within one year of the final disposition of a case, the
State correctly points out that appellant never did, in fact, challenge the cost. That
is, appellant had one year after the date of the final disposition of each cause to file
a motion with the trial court seeking to correct any errors in the cost. See TEX.
CODE CRIM. PROC. ANN. art. 103.008(a). Appellant has not done so.
Even if he had filed a motion, however, appellant was also required to obtain
a ruling from the trial court. See TEX. R. APP. P. 26.2(a) (requiring notice of appeal
within 30 days “after the day the trial court enters an appealable order”); see also
TEX. R. APP. P. 33.1(a)(2) (requiring a ruling or refusal to rule from trial court to
preserve error for appeal). If there is no order from the trial court ruling on the
motion to correct any errors regarding costs, it cannot be said that appellant has
timely appealed from the order. If the appeal is not timely, we lack jurisdiction to
consider the appeal. 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).
The order about which appellant complains in his notice of appeal, the initial
order awarding attorney’s fees, was signed almost one year before the notice of
appeal was filed. This is outside the period to file a timely appeal. TEX. R. APP. P.
26.2(a). There is no other, more recent order from which appellant can appeal.
Accordingly, we lack jurisdiction over these two appeals.
Conclusion
We dismiss the appeals for want of jurisdiction.
Laura Carter Higley
Justice
Panel consists of Justices Higley, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).