M.B. Jackson v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00067-CR

M.B. Jackson,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 14,077-C

MEMORANDUM  Opinion

            M. B. Jackson brings this appeal from an adverse finding under article 64.04 of the Code of Criminal Procedure.[1] The trial court signed the order Jackson challenges on December 12, 2007.  Jackson mailed what this Court has construed to be a notice of appeal[2] to the Clerk of this Court on February 11, 2008.  We will dismiss the appeal because it is untimely.

            Article 64.05 provides in pertinent part that an appeal of an adverse order under Chapter 64 “is to a court of appeals in the same manner as an appeal of any other criminal matter.”  Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon 2006).  Thus, an appealing party under article 64.05 must file a notice of appeal within thirty days after entry of the order to properly invoke the jurisdiction of the court of appeals.[3]  See Swearingen v. State, 189 S.W.3d 779, 780-81 (Tex. Crim. App. 2006) (citing Tex. R. App. P. 25.2(b), 26.2(a)(1)).

            Here, Jackson filed his notice of appeal more than 60 days after entry of the order he is challenging.  Therefore, because the notice of appeal is untimely, we dismiss the appeal.  Id.

                                                                                                PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed March 12, 2008

Do not publish

[CRPM]

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[1]               Jackson initially filed a mandamus petition with this Court seeking to compel the trial court to make a finding as required by article 64.04.  We conditionally granted mandamus relief by opinion dated December 5, 2007.  See In re Jackson, 238 S.W.3d 603 (Tex. App.—Waco 2007, orig. proceeding).

[2]               The pleading in question is entitled “Applicant Motion to Rebuttal Order Denying Relief Pursuant to Article 64.04 of the Texas Code of Criminal Procedure.”  This pleading has been construed as a notice of appeal because it directly challenges the adverse finding under article 64.04.  See Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon 2006) (providing for appeal of adverse findings under Chapter 64); see also Swearingen v. State, 189 S.W.3d 779, 780-81 (Tex. Crim. App. 2006).

[3]               We need not address whether this deadline may be extended by the filing of a motion for new trial because no such motion was filed in this case.  See Tex. R. App. P. 26.2(a)(2).

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