Ross M. O'Conner v. State

NO. 07-08-0293-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 15, 2008
______________________________
ROSS M. O’CONNER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;
NO. 2006-440,290; HON. LARRY B. LADD, PRESIDING
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Ross M. O’Conner, appeals his conviction for the offense of driving while
intoxicated and sentence of 120 days confinement in the county jail and fine of $1,000
suspended for one year. We will dismiss the appeal for want of jurisdiction.
On June 17, 2006, appellant was arrested for the offense of driving while intoxicated
and charged by information for the offense. Prior to trial, on November 1, 2007, and
January 16, 2008, the trial court held hearings on appellant’s motion to suppress
appellant’s statements made to the police officer prior to any Miranda warnings. On
February 21st, the trial court filed a letter denying appellant’s motion to suppress. On April
14th, appellant entered an open plea of guilty before the trial court, who delayed
sentencing and ordered a presentencing report. On May 29th, after receiving the
presentencing report, the trial court proceeded to find appellant guilty and sentenced him
to 120 days in county jail and $1,000 fine. The trial court then suspended the sentence as
well as $250 of the fine for one year. At the sentencing hearing, the trial court also briefly
mentioned some conditions of probation but concluded the hearing by stating that the
actual written judgment would be prepared later, requested that the State prepare the
judgment, and asked the State to make a copy available to defense counsel “so that he
can make any objections if he sees fit.” The judgment was signed on June 5th, and
appellant filed his notice of appeal on July 3rd. On August 12, this court notified appellant
that the notice of appeal appeared untimely having been filed more than 30 days from May
29th. Appellant filed a brief on the issue of the court’s jurisdiction on August 22nd
contending that the time for filing notice of appeal began on June 5th with the trial court’s
signing of the judgment.
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.
Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In the absence of a timely filed
notice of appeal that complies with the requirements of the Texas Rules of Appellate
Procedure, a court of appeals does not obtain jurisdiction to address the merits of the
appeal in a criminal case and can take no action other than to dismiss the appeal. Slaton
v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).
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Appellant contends that, although the trial court announced sentencing in open court
on May 29th, the sentencing was not completed until the execution of the judgment on
June 5th. Appellant notes that the written judgment contains several conditions of
probation not announced at the May 29th hearing and contends that appellant’s sentence
was not “suspended in open court” until the day the last condition of probation was decided
and formalized in the written judgment on June 5th. Appellant cites Bailey v. State, 160
S.W.3d 11 (Tex.Crim.App. 2004), for his contention that the time to file an appeal did not
begin until June 5th when all conditions of probations were “pronounced” in the judgment
because the court specifically requested that the State make a copy available to appellant
in order to allow him an opportunity to object. Appellant contends that, by allowing him an
opportunity to object, the trial court evidenced that it had not completed sentencing until
the terms of probation were incorporated into the judgment. We disagree.
In Bailey, the appellant pled guilty and was sentenced by the trial court who then
proceeded to suspend the sentence. However, the trial court set another hearing date for
one month later “to consider the State’s request for restitution as a further condition of
probation.” Bailey, 160 S.W.3d at 12 (emphasis added). After the restitution hearing, the
trial court ordered that the conditions of the appellant’s probation be amended to include
restitution payments and signed a restitution order to that effect. Bailey filed a notice of
appeal stating that “[t]he Defendant desires to appeal the JUDGMENT and SENTENCE in
the above cause, in addition to the Court’s appealable ORDERS concerning restitution and
probationary conditions.” Id. The Court of Criminal Appeals acknowledged that Bailey
could not have appealed a decision granting restitution until the restitution order was
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entered and, because of the unique facts of the case, determined that sentence was not
imposed within the meaning of Texas Rule of Appellate Procedure 26.2(a)(1) until the day
the last condition of probation was decided. Id. at 16. However, the starting point for
calculating the timeliness of the notice of appeal is context dependent. Rodarte v. State,
860 S.W.2d 108, 109 (Tex.Crim.App. 1993). In the “ordinary” appellate context, where the
defendant appeals a judgment of conviction, the thirty days begin to run on the day
sentence is imposed or suspended in open court. Id. When some other action of the trial
court is appealed, the appellate timetable begins with the signing of the particular order.
Id. In Bailey, the Court of Criminal Appeals made such a distinction and remanded the
cause only for a hearing on the merits of Bailey’s challenge to the restitution order, even
though Bailey also desired to appeal the judgment and sentence. Bailey, 160 S.W.3d at
16.
In this case, appellant challenges his conviction and sentence and raises on appeal
concerns regarding the admission of extra-judicial statements.1 Therefore, we conclude
that the present case is from an “ordinary” appellate context and, thus, appellant’s time to
file an appeal to challenge his conviction began to run on the day sentence was suspended
in open court on May 29. See Rodarte, 860 S.W.2d at 109. Therefore, appellant was
required to give notice of appeal within 30 days after the date sentence was imposed in
open court, or June 30. See TEX . R. APP. P. 26.2(a). Appellant’s failure to timely file a
1
In appellant’s notice of appeal, appellant specifies that he “appeal[s] his conviction
. . . limited to the matters raised in the pretrial motion which was filed in this [Trial] Court.”
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notice of appeal prevents this court from exercising jurisdiction over his appeal. Slaton, 981
S.W.2d at 210. Consequently, the appeal is dismissed for want of jurisdiction.2
Mackey K. Hancock
Justice
Publish.
2
In the alternative, appellant requests that we accept his notice of appeal as a
presumptive request for an extension under Rule 26.3. However, appellant’s notice cannot
be read as a request for extension because it fails to comply with Rule 10.5(b) and fails to
give a reasonable explanation for the untimely filing. See TEX . R. APP. P. 26.3(b). Both a
notice of appeal and a motion for extension must be filed within 15 days of when the notice
of appeal was due or else the notice fails to invoke the appellate court’s jurisdiction. Olivo,
918 S.W.2d at 522.
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