Winston Crone Moore, Jr. v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-97-048-CR

WINSTON CRONE MOORE, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court #2

Dallas County, Texas

Trial Court # F94-02384-SI

MEMORANDUM OPINION

Winston Crone Moore, Jr., pleaded guilty to the offense of unlawful possession of an undisclosed amount of a controlled substance, to-wit: cocaine, on October 5, 1994. See Tex. Health & Safety Code Ann. 481.101 et seq. (Vernon 1992 & Supp. 1997). Pursuant to a plea bargain agreement, the trial court deferred adjudication of Moore's guilt and placed him under community supervision for a term of three years. On June 27, 1996, the trial court adjudicated Moore guilty of the charged offense, after accepting his plea of true to one of the State's allegations that he violated the terms and conditions of community supervision, and assessed punishment at ten years' incarceration in the Texas Department of Criminal Justice-Institutional Division and a fine of $750. On November 21, 1996, Moore filed a motion for shock probation which the trial court denied. Moore then filed a general notice of appeal on December 20, 1996. Moore's case was transferred to this court on February 11, 1997.

On May 21, the State filed a motion to dismiss Moore's appeal for want of jurisdiction alleging that Moore's notice of appeal was untimely because it was filed 176 days after the date of judgment. The State, through its motion, asserts that Moore is appealing the adjudication of guilt. However, because Moore filed only a general notice of appeal, we are unable to identify his complaints concerning the trial court's actions. Moore could be appealing the trial court's adjudication of his guilt which occurred on June 27, 1996, or he could be appealing the court's denial of his motion for shock probation. In either situation, we lack jurisdiction to consider the appeal and must dismiss.

APPEAL OF TRIAL COURT'S DENIAL OF MOTION FOR SHOCK PROBATION

The trial court denied Moore's motion for shock probation on November 21, 1996. Moore filed his notice of appeal on December 20, 1996, within the 30-day period allowed. See Tex. R. App. P. 41(b)(1). Consequently, we believe that Moore's general notice of appeal was filed so that he could seek a review of the trial court's denial of shock probation. However, an appeal of such an order is not allowed.

The right to appeal from a criminal proceeding is a statutory right. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). The right to appeal is conferred by the legislature, and an accused may appeal only that which the legislature has authorized. Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993); Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992). A criminal defendant has no right to appeal the denial of a motion requesting the imposition of shock probation. Houlihan v. State, 579 S.W.2d 213, 215-16 (Tex. Crim. App. 1979); see Tex. Code Crim. Proc. art. 42.12, 6(a) (Vernon Supp. 1997); Perez v. State, No. 03-96-00121-CR, slip op. at 3-4 (Tex. App. Austin, January 30, 1997, pet. filed). Accordingly, we lack the jurisdiction to entertain Moore's direct appeal from the trial court's order denying his request for shock probation.

UNTIMELY NOTICE OF APPEAL

Alternatively, if Moore filed his general notice of appeal to complain of the trial court's judgment entered on June 27, 1996, then Moore's notice of appeal is untimely and we must still dismiss his appeal for want of jurisdiction. Tex. R. App. P. 41(b)(1); Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex. Crim. App. 1993). To appeal from his conviction and punishment, Moore must have filed a notice of appeal within thirty days "after the day sentence [was] imposed or suspended in open court" or within ninety days if a timely motion for new trial was filed. Tex. R. App. P. 41(b)(1). According to a copy of the judgment attached to the State's motion to dismiss, Moore's sentence was imposed on June 27, 1996. He filed his notice of appeal on December 20, 1996, the 176th day after sentencing. The record does not indicate whether Moore filed a timely motion for new trial; however, even assuming he did so, his notice was at a minimum 86 days late. Id.; Rodarte, 860 S.W.2d at 109-10. Furthermore, Moore did not file a motion for an extension of time to file the notice of appeal. Tex. R. App. P. 41(b)(2); Olivo v. State, 918 S.W.2d 519, 524 (Tex. Crim. App. 1996). Because Moore did not timely file his notice of appeal, we do not have jurisdiction over an appeal of the June 27, 1996 judgment. Tex. R. App. P. 41(b)(1); Rodarte, 860 S.W.2d at 109-10.

The abatement order issued on May 7, 1997, is withdrawn, and this appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed June 9, 1997

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