Kirk Wayne McBride, Sr. v. the State of Texas ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-21-00057-CR
Kirk Wayne McBride, Sr., Appellant
v.
The State of Texas, Appellee
FROM THE 22ND DISTRICT COURT OF COMAL COUNTY
NO. CR94-311, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
We issued our original opinion in this case March 31, 2021 in which we
concluded that we lacked jurisdiction over appellant’s appeal of his sentence and a purported
“Order denying the Appellant’s Motion for Entry of Judgment.” 1 See McBride v. State,
No. 03-21-00057-CR, 2021 WL 1202092, at *1 (Tex. App.—Austin Mar. 31, 2021, pet. ref’d)
(mem. op., not designated for publication). Appellant has now filed a motion for rehearing. See
Tex. R. App. P. 49.1. We overrule appellant’s motion for rehearing, withdraw our previous
opinion, vacate our previous judgment, and issue this substitute opinion and a new judgment.
Twenty-five years ago, a jury found appellant guilty of aggravated sexual assault
and assessed punishment, enhanced by two previous felony convictions, at ninety-nine years. In
1 The record before us contains no written, signed order denying appellant’s Motion for
Entry of Judgment, filed on February 2, 2021.
two issues, appellant contends that we erred by finding that we lacked jurisdiction because the
record “unequivocally shows that there is an outstanding Judgment of Conviction imposing
sentence from which to appeal.”
BACKGROUND
Appellant was charged in four indictments with sexual assault, aggravated sexual
assault, and aggravated kidnapping. McBride v. State, No. 03-95-00596-CR, 1997 WL 123560,
at *1 (Tex. App.—Austin Mar. 20, 1997, pet. ref’d) (per curiam) (not designated for
publication). He was convicted on each of the indictments following a consolidated trial, but this
Court reversed his convictions after we determined that a blood sample drawn from appellant
was unlawfully seized. See McBride v. State, 840 S.W.2d 111, 114–17 (Tex. App.—Austin
1992, pet. ref’d). He was retried on the original indictments, but the trial ended in a mistrial on
appellant’s motion. McBride, 1997 WL 123560, at *1. He was then twice reindicted on
aggravated sexual assault: cause number CR90-157 (as originally indicted) became cause
number CR94-311 and, finally, CR95-129. Id. The latter indictment contained two counts,
alleging sexual assault aggravated by (1) fear of imminent infliction of death, serious bodily
injury, and kidnapping and (2) use of a deadly weapon, respectively. Id. The jury charge
authorized conviction on either theory. Id. Following a trial, the jury returned a general verdict
of guilty and sentenced appellant to ninety-nine years’ confinement. Id. at *4.
Several months before his retrial in cause number CR95-129, appellant, pursuant
to a plea bargain, pleaded guilty in cause numbers CR94-311, -312, -313, and -314 in exchange
for a recommended sentence of thirty years’ confinement. After receiving the pre-sentencing
investigation, the trial court rejected the plea agreements at a sentencing hearing on
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April 11, 1995. The trial judge informed appellant that he was rejecting the agreements and
asked him whether he wished to withdraw his pleas. Appellant declined, and the trial judge
found him “guilty as charged of all cases,” stated that “the sentences will be 60 years in each
case,” and remanded him to the sheriff’s custody. Nevertheless, the trial judge then explained,
“That is not the plea agreement. You can withdraw your pleas of guilty if you wish or, if you
wish, you can accept 60 years in the Texas Department of Criminal Justice. You can talk to your
attorney about it and let me know.” After a delay, appellant’s attorney returned to the courtroom
and indicated on the record that appellant “wishe[d] to proceed to trial.” The trial court stated
that appellant “will be allowed to withdraw his plea[s] and his cases will be reset for trial”; on
the docket sheet for cause number CR94-311, the trial judge noted that appellant had withdrawn
his plea and the case was to be reset. However, before the trial could be held, the case was
reindicted in cause number CR95-129. Cause number CR94-311 was subsequently dismissed
upon motion of the State. Id., at *1.
On January 28, 2021, approximately twenty-five years after his conviction in
cause number CR95-129, appellant filed a two-paragraph Notice of Appeal in cause number
CR94-311, appealing “from the Sentence that was pronounced and imposed against the
Defendant on April 11, 1995, and Order denying the Appellant’s Motion for Entry of Judgment.”
The notice stated it was “an appeal from a Plea Bargain Agreement and the punishment imposed
exceeded the recommendation of the prosecution.” The sole “Motion for Entry of Judgment” in
the record before us was filed after the notice of appeal, on February 2, 2021; no signed order
denying the motion appears in the record.
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DISCUSSION
Appellant filed the present notice of appeal under cause number CR94-311, in
which his guilty plea was withdrawn and the indictment dismissed; he appeals from the sentence
“pronounced and imposed” on April 11, 1995, the date of the plea proceeding. Nevertheless, we
understand the claims made in appellant’s brief and motion for rehearing to amount to an
allegation of a double jeopardy violation and challenge to his subsequent reindictment, trial, and
ninety-nine-year sentence in cause number CR95-129. Appellant appears to allege that any
finding that he withdrew his guilty plea is unsupported by the record and suggests that cause
number CR94-311 was dismissed only after jeopardy had attached. In support of his contention,
appellant notes that during the plea proceeding, the trial court found him guilty and stated that
“the sentences will be 60 years in each case.”
The Court of Criminal Appeals (“CCA”) has held that an appellant’s failure to
comply with the technical requirements of notices of appeal, including providing the correct
cause number, is insufficient to divest a court of appeals of jurisdiction. See Harkcom v. State,
484 S.W.3d 432, 434 (Tex. Crim. App. 2016); Gonzales v. State, 421 S.W.3d 674, 675 (Tex.
Crim. App. 2014); Few v. State, 230 S.W.3d 184, 190 (Tex. Crim. App. 2007). In Few, as here,
the appellant was re-indicted and convicted on the new indictment. 230 S.W.3d at 185–86.
Following his conviction, the trial court dismissed the original indictment. Id. Although Few
mistakenly wrote the original cause number on his notice of appeal, the CCA held that the court
of appeals retained jurisdiction because it was “apparent from the record” that all parties knew
that Few expressed his desire to appeal his conviction. Id. at 185, 190.
In explaining the rationale for its holding, the CCA emphasized the amendment of
the Rules of Appellate Procedure in 2002 “to prevent trivial, repairable mistakes or defects from
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divesting appellate courts of the jurisdiction to consider the merits of both State and defense
appeals in criminal cases.” Id. at 187; see Tex. R. App. P. 25.2(f). The Court noted that it has
“instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet
liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary
to effect the purpose of a rule.” Few, 230 S.W.3d at 189. Criticizing its older cases as elevating
“form over substance,” the Court stated, “A person’s right to appeal a civil or criminal judgment
should not depend upon tracking through a trail of technicalities.” Id.; see Gonzales, 421 S.W.3d
at 675. The CCA has subsequently held that “[a]ll that is required [to constitute a notice of
appeal] is that the notice be in writing, be submitted within thirty days or ninety days after
sentencing, as appropriate, and show the party’s desire to appeal from the judgment or other
appealable order.” Harkcom, 484 S.W.3d at 434. Thus, we will not conclude that we lack
jurisdiction as a result of appellant’s erroneously filing his appeal under cause number
CR94-311.
Although appellant’s mistakenly filing his notice of appeal under the wrong cause
number does not deprive us of jurisdiction, appellant has already filed a notice of appeal under
cause number CR95-129. See McBride, 1997 WL 123560, at *1. “[O]nly one appeal can be
made from a verdict and judgment of conviction in any case.” Hines v. State, 70 S.W. 955, 957
(Tex. Crim. App. 1902); Arabzadegan v. State, No. 03-19-00728-CR, 2020 WL 370880, at *1
(Tex. App.—Austin Jan. 23, 2020, pet. ref’d) (mem. op., not designated for publication); see
McDonald v. State, 401 S.W.3d 360, 362 (Tex. App.—Amarillo 2013, pet. ref’d) (dismissing
appeal for want of jurisdiction because appellant was not entitled to more than one appeal from
conviction); Coleman v. State, No. 03-11-00648-CR, 2011 WL 6118604, at *1 (Tex. App.—
Austin Dec. 8, 2011, no pet.) (mem. op., not designated for publication) (same). Because
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appellant directly appealed his conviction in cause number CR95-129 approximately twenty-five
years ago, we lack jurisdiction to consider this appeal.
To the extent that appellant insists he was not mistaken in filing his notice of
appeal under cause number CR94-311, we reiterate that there is no judgment imposing sentence
from which to appeal. Abbott v. State, 271 S.W.3d 694, 697 n.8 (Tex. Crim. App. 2008) (noting
Court’s prior recognition of “long-established rule that a defendant’s general right to
appeal under Article 44.02 ‘has always been limited to appeal’ from a ‘final judgment.’”);
Chapman v. State, No. 01-14-00980-CR, 2016 WL 635283, at *1 (Tex. App.—Houston [1st
Dist.] Feb. 11, 2016, no pet.) (mem. op., not designated for publication) (concluding that because
charge was dismissed and there was no judgment from which to appeal, appellate court had no
jurisdiction over appeal); Valencia v. State, No. 05-06-01727-CR, 2007 WL 196449, at *1 (Tex.
App.—Dallas Jan. 26, 2007, no pet.) (mem. op., not designated for publication) (dismissing
appeal for lack of jurisdiction where record contained no judgment of conviction and thus
nothing was presented for review).
Moreover, the untimeliness of the appeal likewise deprives us of jurisdiction. As
noted above, a notice of appeal challenging a conviction or order must be filed within thirty or
ninety days after the sentence is imposed in open court or the order is entered, depending on
whether the defendant timely files a motion for new trial. Chapman, 2016 WL 635283, at *1;
see Tex. R. App. P. 26.2(a). “A notice of appeal which complies with the requirements of Rule
26 is essential to vest the court of appeals with jurisdiction.” Slaton v. State, 981 S.W.2d 208,
210 (Tex. Crim. App. 1998). As such, we must dismiss an appeal for lack of jurisdiction when
the notice of appeal is untimely. See Roberts v. State, 270 S.W.3d 662, 665 (Tex. App.—San
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Antonio 2008, no pet.) (citing Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim.
App. 1991)).
With respect to appellant’s appeal of an alleged “order” denying his Motion for
Entry of Judgment, no such order appears in the record before us. Because there is no appealable
order on the motion, we lack jurisdiction to consider the appeal. See Tex. R. App. P. 25.2; Tex.
Code Crim. Proc. art. 44.02; State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012)
(noting that “[Court’s] precedent requires that an order be in writing” when discussing State’s
statutory right to appeal pretrial suppression order); see also State v. Rosenbaum, 818 S.W.2d 398,
401–02 (Tex. Crim. App. 1991) (holding that for purposes of appeal, trial court “enters” order
when judge signs order). Moreover, even if there were such an order in the record, we find no
statutory authority authorizing his right to appeal it. Blanton v. State, 369 S.W.3d 894, 902 (Tex.
Crim. App. 2012) (quoting Abbott, 271 S.W.3d at 696–97); see Tex. Const. art. V, § 6(a)
(providing that courts of appeals have appellate jurisdiction “under such restrictions and
regulations as may be prescribed by law”); Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App.
2014) (explaining that “[j]urisdiction must be expressly given to the courts of appeals in
a statute”).
CONCLUSION
For the above reasons, we conclude that we lack jurisdiction over this appeal.
Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
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__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Baker and Smith
Dismissed for Want of Jurisdiction on Motion for Rehearing
Filed: December 2, 2021
Do Not Publish
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