Phillip Doyle Chaney v. State

NO. 07-10-0066-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 27, 2010
______________________________
ANTHONY LOCKETT,
Appellant
v.
THE STATE OF TEXAS
Appellee
_______________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-422947; HON. JIM BOB DARNELL, PRESIDING
_______________________________
Dismissal
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant, Anthony Lockett, appeals his conviction for possession of a controlled
substance, a first degree felony. By letter dated May 7, 2010, we informed appellant
that it appeared his notice of appeal was untimely and he had until May 17, 2010, to
provide us with any information that would be necessary to our determination of
jurisdiction. Appellant filed a motion for this court to accept jurisdiction because even
though the notice of appeal and motion for new trial were not filed within thirty days after
sentence was pronounced, they were filed timely after the written judgment was signed.
This, according to appellant, “vests the Court with jurisdiction to hear issues regarding
orders contained in the written judgment but not orally pronounced at trial.” Appellant
further relies on the case of Bailey v. State, 160 S.W.3d 11 (Tex. Crim. App. 2004) to
support his argument. In Bailey, the Court of Criminal Appeals held that a restitution
order entered about a month after sentencing was pronounced was a continuation of
the sentencing hearing because appellant’s punishment was not complete until the
restitution was ordered. This is not the case here. Appellant admits that restitution was
not ordered in this case nor has he pointed us to anywhere in the record to indicate
punishment has not been completed. Nor does he suggest that anything is actually
wrong with the judgment itself or that it encompasses punishment different from that
orally pronounced.
Because appellant agrees that his motion for new trial and notice of appeal were
not timely filed from the date sentence was pronounced, we find we lack jurisdiction
over the matter.1
Accordingly, appellant’s appeal is dismissed.
Per Curiam
Do not publish.
1
The appropriate vehicle for seeking an out-of-time appeal from a final felony conviction is by writ
of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2009-2010).
2