Donald Anthony MacKenzie v. State

Opinion issued January 14, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00239-CR
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DONALD ANTHONY MACKENZIE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Case No. 1730211
MEMORANDUM OPINION
On March 1, 2012, a jury found appellant, Donald Anthony MacKenzie,
guilty of the misdemeanor offense of disorderly conduct. See TEX. PEN. CODE
ANN. § 42.01(a)(8) (West Supp. 2013). That same day, the trial court rendered
judgment based on the jury’s verdict and MacKenzie filed a notice of appeal. On
March 30, 2012, MacKenzie filed a motion for new trial, which the trial court
granted on April 26, 2012, thereby setting aside the jury’s verdict and the March 1,
2012 judgment. See TEX. R. APP. P. 21.9(b). MacKenzie then pleaded guilty to the
offense. On June 19, 2012, the trial court found MacKenzie guilty and, in
accordance with the terms of his plea bargain agreement with the State, sentenced
him to three days in the Harris County Jail. MacKenzie did not file a notice of
appeal from the June 19, 2012 judgment. We dismiss the appeal.
In a criminal case, an appellant must timely file a notice of appeal to perfect
the appeal. See TEX. R. APP. P. 25.2(b); Olivo v. State, 918 S.W.2d 519, 522 (Tex.
Crim. App. 1996). To be timely filed, the notice of appeal must be filed after the
trial court makes a finding of guilt or receives the jury’s verdict and within either
30 or 90 days after the day sentence is imposed or suspended in open court. See
TEX. R. APP. P. 26.2(a), 27.1(b). A notice of appeal filed before the trial court
makes a finding of guilt or receives the jury’s verdict is not effective. See TEX. R.
APP. P. 27.1(b); Pilarcik v. State, No. 08-08-00121-CR, 2008 WL 4429734, at * 1
(Tex. App.—El Paso Oct. 2, 2008, no pet.) (not designated for publication);
Caldera v. State, Nos. 13-01-528-CR, 13-01-529-CR, 13-01-530-CR, 2002 WL
992770, at *1 (Tex. App.—Corpus Christi May 16, 2002, no pet.) (not designated
for publication); McGarity v. State, No. 04-99-00817-CR, 2000 WL 277315, at *1
(Tex. App.—San Antonio Mar. 15, 2000, no pet.) (not designated for publication).
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Here, MacKenzie filed his notice of appeal after the jury found him guilty
and the trial court entered its March 1, 2012 judgment. Once the trial court granted
his motion for new trial and set aside the jury’s finding of guilt and the March 1,
2012 judgment, however, the appeal from the March 1, 2012 judgment was
rendered moot. See TEX. R. APP. P. 21.9(b) (“Granting a new trial restores the case
to its position before the former trial . . . .”). And because a notice of appeal is
ineffective if filed before the trial court makes a finding of guilt, MacKenzie’s
March 1, 2012 notice of appeal, filed prior to the June 19, 2012 finding of guilt by
the trial court, was ineffective to invoke this Court’s jurisdiction over an appeal
from the trial court’s June 19, 2012 judgment. See TEX. R. APP. P. 27.1(b).
MacKenzie was required to file a new notice of appeal after the trial court re-
sentenced him on June 19, 2012 to invoke this Court’s jurisdiction over an appeal
from the June 19, 2012 judgment. See Pilarcik, 2008 WL 4429734, at *1.
Accordingly, we have no jurisdiction over this appeal and can take no action
other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.
Crim. App. 1998); Pilarcik, 2008 WL 4429734, at *1; Caldera, 2002 WL 992770,
at *1; McGarity, 2000 WL 277315, at *1. We dismiss the appeal for want of
jurisdiction. We dismiss any pending motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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Do not publish. TEX. R. APP. P. 47.2(b).
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