Sean Stark v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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SEAN STARK, ) No. 08-06-00119-CR

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Appellant, ) Appeal from

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v. ) 168th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20050D01364)

O P I N I O N

Sean Stark attempts to appeal his conviction of tampering with a governmental record. Finding that Appellant has not timely filed his notice of appeal or a motion for extension of time, we dismiss the appeal.

The record before us reflects that sentence was imposed in open court on June 17, 2005. Appellant timely filed a motion for new trial on July 11, 2005, and notice of appeal on September 8, 2005. The clerk s record was filed on October 13, 2005. On that same date, we notified Appellant s counsel that the trial court s certification reflected that Appellant did not have a right of appeal and we requested a response within ten days. Counsel filed a response on behalf of Appellant asserting that he intended to appeal the trial court s ruling on a special plea of double jeopardy raised by written motion and ruled on before trial. Because the record did not reflect that the court had ruled on the special plea of double jeopardy prior to the guilty plea or that the trial court s certification was otherwise erroneous, we dismissed the appeal on December 8, 2005. See Stark v. State, No. 08-05-00312-CR, 2005 WL 3327557 (Tex.App.--El Paso Dec. 8, 2005, no pet.). Appellant s counsel filed a general motion for rehearing but he did not indicate that the special plea of double jeopardy had in fact been ruled on prior to trial or otherwise state that the trial court s certification was erroneous. We denied Appellant s motion for rehearing on January 4, 2006. Appellant did not file a petition for discretionary review, and we issued the mandate on May 1, 2006.

On May 9, 2006, Appellant filed a motion to re-file his original appeal because the trial court, on April 10, 2006, had issued a new certification indicating that Appellant had a right to appeal those matters raised by written motion and ruled on before trial. Attached to the motion is an order, entered by the trial court on April 11, 2006, denying Appellant s special plea of double jeopardy. The trial court judge indicated that she had denied the special plea of double jeopardy prior to Appellant s guilty plea but she had not entered a written order because none had been presented. Because we lacked jurisdiction to consider the motion in the context of the original appeal or to reinstate the appeal at this late juncture, we treated the motion as a new notice of appeal. Appellant has since filed a motion requesting that we withdraw the mandate in the original appeal and allow him an out-of-time appeal.

We are unable to grant either request due to a lack of jurisdiction. First, regarding reinstatement of the appeal, our jurisdiction to withdraw the opinion and judgment dismissing the appeal expired on February 3, 2006, thirty days after the last timely motion for rehearing was overruled. Appellant faults the Court for dismissing the appeal without first reviewing the reporter s record to determine whether he had a right to appeal, but the trial court s certification clearly reflected that Appellant did not have a right of appeal and there was no evidence to suggest that the court s certification was erroneous. In his response to our original inquiry about the court s certification, Appellant s counsel candidly admitted he was unsure whether the trial court had ruled on Appellant s special plea of double jeopardy and suggested that it would be necessary for him to review the reporter s record to verify this fact. Appellant s attorney did not contact the Court again prior to dismissal and he did not cause an amended certification to be filed until long after our jurisdiction had expired. See Tex.R.App.P. 25.2(f)(permitting filing of amended certification correcting a defect or omission in an earlier filed certification). Therefore, we presumed that the trial court had correctly certified that Appellant did not have a right of appeal and we dismissed the appeal on that basis. If Appellant had made this Court aware either prior to dismissal or within the time for rehearing that the certification was in fact erroneous, we certainly would have allowed time for it to be corrected and the appeal to proceed.

Regarding Appellant s request that we permit him an out-of-time appeal because the trial court has corrected the certification, neither the trial court nor this Court has authority to grant an out-of-time appeal. The exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to Article 11.07 of the Code of Criminal Procedure. Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991); Tex.Code Crim.Proc. Ann. art. 11.07 (Vernon Supp. 2005). Appellant s motion to reinstate the appeal or grant him an out-of-time appeal is therefore denied. We dismiss the instant appeal for lack of jurisdiction because the notice of appeal filed on May 9, 2006 is untimely to perfect an appeal from the sentence imposed on June 17, 2005. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996); Tex.R.App.P. 26.2(a)(1).

August 10, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)