Johnnie Ray Mangham v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-162-CR

JOHNNIE RAY MANGHAM,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-0137-C

MEMORANDUM OPINION

On August 8, 1995, Johnnie Mangham pled guilty to felony driving while intoxicated and the court assessed the agreed punishment of ten years' incarceration. Tex. Penal Code Ann. 49.04 (Vernon 1994 & Supp. 1996). He requested that the trial court provide him a free copy of the record by a motion filed on April 29, 1996. Tex. R. App. P. 53(j)(2). After the court denied his request, he filed several documents in this court seeking to appeal from that ruling. Because an order denying a request for a free copy of the record is not independently appealable, we dismiss this cause for want of jurisdiction.

Our jurisdiction extends to all criminal cases arising from the district and county courts within the counties composing the Tenth Court of Appeals District, with certain exceptions. Tex. Const. art. V, 6; Tex. Gov't Code Ann. 22.201(k) (Vernon 1988); Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon Supp. 1996). However, the fact that an order is incident to a criminal case does not assure that we have jurisdiction over an appeal from the order. Armes v. State, 573 S.W.2d 7, 8-9 (Tex. Crim. App. [Panel Op.] 1978). To prosecute an appeal from an incidental order, the appellant must "point to some constitutional or statutory provisions conferring such right and bring himself within the procedure prescribed." See id.

On August 8, our clerk notified Mangham that it appeared we did not have jurisdiction over his complaint. Tex. R. App. P. 83. He responded, arguing that he is entitled to a free copy of the record because he complied with the provisions of Rule 53(j)(2). Id. 53(j)(2). However, Rule 53(j)(2) specifically requires that the request be made "within the time prescribed for perfecting the appeal", a deadline he failed to meet. Id. He also argues that he is entitled to utilize the writ of error procedures of Rule 45. Id. 45. This procedure is available in civil cases, not criminal cases. Id.

Mangham has not cited us to a statute or opinion allowing him to appeal directly from the court's ruling, and we have not uncovered such authority ourselves. We conclude, then, that a defendant may not bring an appeal from an order denying him a free statement of facts independent of an appeal from the judgment itself. // Armes, 573 S.W.2d at 9.

Therefore, we dismiss this cause for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed August 30, 1996

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