Boyd Cooke Styron, Jr. v. The State of Texas--Appeal from County Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-94-301-CR

BOYD COOKE STYRON, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Johnson County, Texas

Trial Court # M93-00054

MEMORANDUM OPINION

In May 1993, Boyd Styron, Jr. pleaded guilty to two charges driving while intoxicated in cause number M92-03423, and possession of marijuana in cause number M93-00054 and the court sentenced him to two years' probation and six months probation, respectively. See Tex. Rev. Civ. Stat. Ann. art. 6701l-1 (Vernon Supp. 1995) (repealed 1993) (current version at Tex. Penal Code Ann. 49.04 (Vernon 1994); Tex. Health & Safety Code Ann. 481.121 (Vernon 1992). In July 1994 the court revoked his probation in both causes. He has attempted to appeal in both causes: cause M92-03423 in cause number 10-94-293-CR and cause M93-00054 in this appeal. Because his notice of appeal in this cause was untimely, we will dismiss this appeal for want of jurisdiction.

The State moved to revoke his probation in both causes based on a January 1994 DWI conviction in McLennan County. At a combined hearing on July 19, 1994, Styron pleaded true to the sole allegation in cause number M93-00054 and to several of the allegations in cause M92-03423. However, because the State had withdrawn its punishment-recommendation offer at the start of the hearing, Styron went to the court for punishment. The court assessed punishment of 180 days in the county jail in cause number M93-00054 and 180 days in the county jail, followed by 180 days on work-release, in cause number M92-03423. The punishments were to run concurrently. At the conclusion of the hearing, Styron's attorney gave oral notice of appeal, and the court set a $1,000 appeal bond. However, no written notices of appeal were filed at that time in either cause.

On August 17, Styron filed a pro-se "Motion To Set Aside Judgment" in cause number M92-03423. He did not file any post-judgment motions in the trial court in cause number M93-00054. Therefore, his time to file a written notice of appeal in this cause expired on August 18, 1994. See Tex. R. App. P. 41(b)(1).

He did, however, file a motion for an extension of time to file written notices of appeal in this court on September 21, 1994. In that motion, he alleged that his failure to file written notices of appeal was due to his attorney's neglect. He attached copies of notices of appeal for both causes filed in the trial court the day before. Although we denied his motion for an extension of time, we docketed both causes as appeals so that we could obtain the record and determine which cause, if either, we have jurisdiction over.

After examining the record, we have determined, as stated above, that Styron's notice of appeal in this cause was due on August 18. See id. He did not file a written notice of appeal until September 20. Thus, his written notice of appeal was thirty-three days too late. See id. Absent a timely, written notice of appeal, we do not have jurisdiction over a criminal appeal. See Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); Reyes v. State, 883 S.W.2d 291, 292-93 (Tex. App. El Paso 1994, no pet. h.). Therefore, we do not have jurisdiction over this cause.

In this opinion we deal only with the issues relating to trial court cause number M93-00054 (appeal cause number 10-94-301-CR). We express no opinion concerning our jurisdiction over trial court cause number M92-03423 (appeal cause number 10-94-293-CR).

This appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed January 25, 1995

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