Scott James Zywicki v. The State of Texas--Appeal from 27th District Court of Bell County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00343-CR
Scott James Zywicki, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 45,084, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

PER CURIAM

 

Appellant pleaded guilty to murder. Tex. Penal Code Ann. 19.02 (West 1994). The district court found him guilty and, pursuant to a plea bargain agreement, assessed punishment at imprisonment for twenty-two years and a $5000 fine. Sentence was imposed on February 20, 1996.

Appellant timely filed motions for new trial and in arrest of judgment. On May 13, appellant filed a written request for permission to appeal, which the district court granted that day. Permission to appeal was required by the "but clause" of rule 40(b)(1). Tex. R. App. P. 40(b)(1). Appellant's notice of appeal was filed on May 23, after the deadline for filing but within the fifteen-day grace period during which an extension of time for filing may be obtained. Tex. R. App. P. 41(b)(1), (2). No extension of time was sought.

Without a timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988). Recognizing this, appellant has filed a motion to continue the appeal, asserting two grounds for doing so. First, appellant argues the motion for permission to appeal was sufficient to show his desire to appeal and therefore qualifies as a notice of appeal under rule 40(b)(1). The Court of Criminal Appeals has held, however, that rule 40(b)(1) demands "an independent written notice of appeal." Shute, 744 S.W.2d at 97. To the extent that it holds that written requests for counsel and for preparation of the record satisfy rule 40(b)(1), Massey v. State, 759 S.W.2d 18, 19 (Tex. App.--Texarkana 1988, no pet.), cited by appellant, is inconsistent with our understanding of Shute. See Williford v. State, 909 S.W.2d 604, 605 (Tex. App.--Austin 1995, no pet.) (affidavit of indigence and request for appointed counsel on appeal did not constitute independent notice of appeal). The other opinions cited by appellant in support of this argument concern the application of the "but clause" and are not on point. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992); Rodriguez v. State, 844 S.W.2d 905, 910 (Tex. App.--San Antonio 1992, pet. ref'd).

Second, appellant urges that if his appeal is dismissed because the notice of appeal was untimely, he will have been denied his right to appeal because of counsel's failure to comply with the appellate rules. While we agree that appellant will be entitled to habeas corpus relief in the form of an out-of-time appeal, we are bound to apply the appellate rules as written and interpreted by the Court of Criminal Appeals.

We may permit the late filing of a transcript or statement of facts on a showing that otherwise the appellant will be deprived of effective assistance of counsel. Tex. R. App. P. 83; see also Tex. R. App. P. 53(m), 74(l) (procedures to follow when no statement of facts or appellate brief is filed). Also, we are generally authorized to suspend the requirements of the appellate rules for good cause. Tex. R. App. P. 2(b). But the Court of Criminal Appeals has stated that rule 2(b) cannot be employed under the present circumstances. When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, we lack jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for want of jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Appellant must await this Court's mandate of dismissal, after which he may file a post-conviction application for writ of habeas corpus seeking an out-of-time appeal. Tex. Code Crim. Proc. Ann. art. 11.07, 2 (West Supp. 1996).

The motion to continue the appeal is overruled and the appeal is dismissed for want of jurisdiction.

 

Before Chief Justice Carroll, Justices Aboussie and Kidd

Dismissed for Want of Jurisdiction

Filed: July 31, 1996

Do Not Publish

HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

PER CURIAM

 

Appellant pleaded guilty to murder. Tex. Penal Code Ann. 19.02 (West 1994). The district court found him guilty and, pursuant to a plea bargain agreement, assessed punishment at imprisonment for twenty-two years and a $5000 fine. Sentence was imposed on February 20, 1996.

Appellant timely filed motions for new trial and in arrest of judgment. On May 13, appellant filed a written request for permission to appeal, which the district court granted that day. Permission to appeal was required by the "but clause" of rule 40(b)(1). Tex. R. App. P. 40(b)(1). Appellant's notice of appeal was filed on May 23, after the deadline for filing but within the fifteen-day grace period during which an extension of time for filing may be obtained. Tex. R. App. P. 41(b)(1), (2). No extension of time was sought.

Without a timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988). Recognizing this, appellant has filed a motion to continue the appeal, asserting two grounds for doing so. First, appellant argues the motion for permission to appeal was sufficient to show his desire to appeal and therefore qualifies as a notice of appeal under rule 40(b)(1). The Court of Criminal Appeals has held, however, that rule 40(b)(1) demands "an independent written notice of appeal." Shute, 744 S.W.2d at 97. To the extent that it holds that written requests for counsel and for preparation of the record satisfy rule 40(b)(1), Massey v. State, 759 S.W.2d 18, 19 (Tex. App.--Texarkana 1988, no pet.), cited by appellant, is inconsistent with our understanding of Shute. See Williford v. State, 909 S.W.2d 604, 605 (Tex. App.--Austin 1995, no pet.) (affidavit of indigence and request for appointed counsel on appeal did not constitute independent notice of appeal). The other opinions cited by appellant in support of this argument concern the application of the "but clause" and are not on point. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992); Rodriguez v. State, 844 S.W.2d 905, 910 (Tex. App.--San Antonio 1992, pet. ref'd).

Second, appellant urges that if his appeal is dismissed because the notice of appeal was untimely, he will have been denied his right to appeal because of counsel's failure to comply with the appellate rules. While we agree that appellant will be entitled to habeas corpus relief in the form of an out-of-time appeal, we are bound to apply the appellate rules as written and interpreted by the Court of Criminal Appeals.

We may permit the late filing of a transcript or statement of facts on a showing that otherwise the appellant will be deprived of effective assistance of counsel. Tex. R. App. P. 83; see also Tex. R. App. P. 53(m), 74(l) (procedures to follow when no statement of facts or appellate brief is filed). Also, we are generally authorized to suspend the requirements of the appellate rules for good cause. Tex. R. App. P.