Jimmy Joseph Newell v. State

IN THE
TENTH COURT OF APPEALS
No. 10-18-00109-CR
JIMMY JOSEPH NEWELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2017-1307-C2
MEMORANDUM OPINION
Jimmy Joseph Newell appeals the trial court’s Order denying Newell’s Motion to
Rescind Withdrawal Notification.
The right of appeal in criminal cases is conferred by the Legislature, and a party
may appeal only from judgments of conviction or interlocutory orders authorized as
appealable. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006); TEX. R. APP. P.
25.2(a)(2). We do not have jurisdiction to review interlocutory orders unless jurisdiction
has been expressly granted by law. Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App.
1991). See also Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008) ("The
standard for determining jurisdiction is not whether the appeal is precluded by law, but
whether the appeal is authorized by law."). The order about which Newell complains is
not a final conviction, and there is no statutory authorization to appeal the denial of a
motion to rescind. Accordingly, we have no jurisdiction of this appeal, and it must be
dismissed.
Even if we had jurisdiction over such an order, Newell’s notice of appeal is
untimely. Newell was required to file his notice of appeal within 30 days after the day
the trial court rendered the order. See TEX. R. APP. P. 26.2(a)(1). His notice of appeal was
due on March 21, 2018. It was not filed until March 23, 2018. We have no jurisdiction of
an untimely appeal, and this appeal must be dismissed. See Olivo v. State, 918 S.W.2d 519,
522 (Tex. Crim. App. 1996) (no appellate jurisdiction where notice of appeal is untimely).
Notwithstanding that we are dismissing this appeal, Newell may file a motion for
rehearing with this Court within 15 days after this opinion and judgment are rendered if
Newell believes this opinion and judgment are erroneously based on inaccurate
information or documents. See TEX. R. APP. P. 49.1. Moreover, if Newell desires to have
the opinion and judgment of this Court reviewed by filing a petition for discretionary
review, that petition must be filed with the Court of Criminal Appeals within 30 days
Newell v. State Page 2
after either the day this Court’s judgment is rendered or the day the last timely motion
for rehearing is overruled by this Court. See TEX. R. APP. P. 68.2(a).
For the reasons stated, this appeal is dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal dismissed
Opinion delivered and filed April 4, 2018
[CR25]
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