Tracy Hicks v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-01-369-CR

TRACY HICKS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 29450

MEMORANDUM OPINION

The opinion and judgment dated March 27, 2002, are withdrawn, and the following opinion and judgment of even date herewith are substituted therefor.

In August 1993, Tracy Hicks pleaded guilty to sexual assault enhanced by a prior felony conviction. Pursuant to a plea recommendation, the court sentenced Hicks to forty years imprisonment on the same day. Hicks filed a Motion for New Trial Based upon Newly Discovered Evidence with the trial court on July 30, 2001, nearly eight years after imposition of sentence. Hicks filed an Original Notice of Appeal from the Trial Court s Denial // of Motion for New Trial Based Upon Newly Discovered Evidence on October 15, 2001.

Former Rule of Appellate Procedure 31, in effect at the time of Hicks s conviction, required that a motion for new trial be filed within 30 days after date sentence is imposed or suspended in open court. Tex. R. App. P. 31(a)(1), 707-708 S.W.2d (Tex. Cases) xlix (Tex. Crim. App. 1986, amended 1997). The current rule provides the same deadline. See Tex. R. App. P. 21.4(a). Therefore, Hicks s July 2001 motion for new trial is untimely. Moreover, the trial court s plenary power to grant or deny any motion for new trial expired seventy-five days after imposition of sentence. See Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).

Hicks s motion for new trial and his corresponding notice of appeal are untimely. See Tex. R. App. P. 26.2(a); State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000); Fowler v. State, 16 S.W.3d 426, 428 (Tex. App. Waco 2000, pet. ref d). Because Hicks did not timely file his notice of appeal, we lack jurisdiction over the appeal. Id. Accordingly, we dismiss the appeal for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Dismissed for want of jurisdiction

Opinion delivered and filed April 3, 2002

Do not publish

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