Royce Eugene Mitchell, Jr. v. State of Texas--Appeal from Co Ct at Law No 3 & Probate Ct of Brazoria County

IN THE

TENTH COURT OF APPEALS

No. 10-01-018-CR

ROYCE EUGENE MITCHELL, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 3

Brazoria County, Texas

Trial Court # 105,793B

MEMORANDUM OPINION

Royce Eugene Mitchell, Jr. was convicted of driving without a seatbelt and driving without a valid driver s license in his possession in the Justice of the Peace Court Number 2, Place 2 of Brazoria County. He appealed to the County Court at Law Number 3 of Brazoria County. Trial de novo occurred, and Mitchell was convicted of driving without a seatbelt, and punishment was assessed at a $40 fine. Mitchell appealed. The State has filed a motion to dismiss alleging that this court does not have jurisdiction to entertain this appeal. We agree.

The Legislature has restricted the right of appeal in certain cases:

The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based.

Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon Supp. 2001).

Article 4.03 applies to this cause. The trial was de novo in the county court at law on appeal from the justice of the peace court, the fine assessed does not exceed $100, and Mitchell does not contest the constitutionality of the statute upon which he was convicted. Ex parte Brand, 822 S.W.2d 636, 639 n.3 (Tex. Crim. App. 1992); Meisner v. State, 907 S.W.2d 664, 666 (Tex. App. Waco 1995, no pet.); Resnedez v. State, 738 S.W.2d 41, 42 (Tex. App. Houston [1st Dist.] 1987, no pet.). Mitchell argues that, because the trial was de novo, it was not an appeal and article 4.03 therefore does not apply. Although it was trial de novo, the jurisdiction of the court was invoked because it was appealed from an inferior court. This is precisely the situation to which article 4.03 is intended to apply.

We grant the State's motion and dismiss the appeal for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Appeal dismissed

Opinion delivered and filed May 30, 2001

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