DocketNumber： 06-08-00155-CR
Filed Date： 7/30/2008
Status： Precedential
Modified Date： 9/7/2015
Jonathan Lynn Vandver appeals from his guilty verdict for sexual assault of a child. The sentence was imposed November 14, 2007. Vandver did not file a motion for new trial, and his appeal was filed July 10, 2008.
Vandver had thirty days after the day sentence was imposed to file a notice of appeal. See Tex. R. App. P. 26.2(a)(1). Therefore, Vandver had until December 14, 2007, to file a notice of appeal. This appeal is untimely and we are without jurisdiction to hear this case.
We dismiss this appeal for want of jurisdiction. (1)
Jack Carter
Justice
Date Submitted: July 29, 2008
Date Decided: July 30, 2008
Do Not Publish
1. We note that the trial entered a handwritten notation July 15, 2008, that the appeal was untimely filed. While the trial court was correct about the timeliness of the appeal, whether this Court has jurisdiction is an issue for this Court to determine. A trial court may in certain circumstances deny an appellant permission to appeal, but the court has no authority to deny the right of appeal in its entirety. Ex parte Zigmond, 933 S.W.2d 666 (Tex. App.--San Antonio 1996, no pet.); see Samaniego v. State, 952 S.W.2d 50, 51 n.2 (Tex. App.--San Antonio 1997, no pet.).
In his pro se petition for writ of mandamus, Allan Haggerty seems to advance two points, both centering on whether Gary Young, county and district attorney for Lamar County, should be disqualified from prosecuting Haggerty based on Young's representation of Haggerty in 1994. Since Haggerty does not make clear the basis for his petition, we address in turn the two arguments raised in his petition.
First, Haggerty contends Young should have been disqualified from prosecuting him in trial court cause number 20559 in which Haggerty has been convicted. Haggerty also explains that an investigator with the Lamar County District Attorney's office is married to his cousin. While Haggerty does not specify the remedy he seeks, he seems to imply that he wants a new trial in connection with cause number 20559. Initially, we note the inadequacies of Haggerty's petition in that he fails to provide this Court with the necessary information to demonstrate that he is entitled to relief. See Tex. R. App. P. 52.3.
More importantly, however, to the extent he is asking this Court to order the trial court to retroactively disqualify Young and order a new trial, this Court cannot do so. Mandamus is an extreme remedy and will not be granted unless no other remedy at law exists. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). Here, Haggerty's remedy, if any, in connection with the offense for which he has been convicted, is best sought by application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Miller, 696 S.W.2d 908, 908–09 (Tex. Crim. App. 1985). Because an application for writ of habeas corpus is a more appropriate vehicle with which to bring this collateral attack, Haggerty would not be entitled to a writ of mandamus even if his petition did comply with Rule 52.3. See In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana 2006, orig. proceeding).
In his second argument, Haggerty explains there is another case pending against him and then takes the position that he does not want Young or Young's office participating in the prosecution of this second case. Haggerty has the burden of providing this Court with a sufficient record to establish his right to mandamus relief. See Tex. R. App. P. 52.3(j)(1); Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). He does not, however, provide any record from which we can decide whether he is entitled to mandamus relief. Additionally, the petition itself fails to comply with Rule 52.3 in several other respects. See Tex. R. App. P. 52.3. So, to the extent Haggerty seeks prospective relief, we also deny his petition for failure to comply with Rule 52.3.
For the above-stated reasons, we deny Haggerty's petition for writ of mandamus.
Donald Ross
Justice
Date Submitted: June 12, 2006
Date Decided: June 13, 2006