Robert Donald Britt v. the State of Texas ( 2021 )

NO. 12-21-00193-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBERT DONALD BRITT, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Robert Donald Britt, acting pro se, filed a notice of restricted appeal under Texas Rule of
Appellate Procedure 30, seeking to appeal from a judgment of conviction in which sentence was
imposed on May 3, 2021. On October 27, the Clerk of this Court notified Appellant that the
information received failed to show the jurisdiction of the Court, i.e., this is a criminal case and
Rule 30 pertains to restricted appeals in civil cases. See TEX. R. APP. P. 30. We informed
Appellant that the appeal would be dismissed unless the information was amended on or before
November 8 to show this Court’s jurisdiction. In response, Appellant states that Rule 30 has
been applied to expunction proceedings. See, e.g, Ex parte L.M.W., 578 S.W.3d 191, 194-95
(Tex. App.—Tyler 2019, no pet.) (restricted appeal from expunction order; “Although the law
that governs expunctions is part of the code of criminal procedure, an expunction proceeding is
civil in nature and is governed by the rules of civil procedure”). Appellant equates revocation
proceedings, such as the case at hand, with expunction proceedings and argues that a revocation
proceeding is civil in nature, therefore, Rule 30 should apply.
A revocation hearing is neither civil nor criminal; rather, it is an administrative
proceeding. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) (en banc). But
assuming, without deciding, that Rule 30 applies to the instance case, Appellant would still not
be entitled to appeal. Rule 30 provides, “A party who did not participate--either in person or
through counsel--in the hearing that resulted in the judgment complained of and who did not
timely file a postjudgment motion or request for findings of fact and conclusions of law, or a
notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the
time permitted by Rule 26.1(c).” TEX. R. APP. P. 30 (emphasis added). According to the
judgment adjudicating guilt, Appellant appeared at the revocation hearing with his counsel. 1 The
record also demonstrates that Appellant filed a timely motion for new trial. Thus, Appellant
participated in the hearing that resulted in the judgment complained of and filed a timely
postjudgment motion. Consequently, even if the right to a restricted appeal were available under
the circumstances of this case, Appellant would be unable to avail himself of a restricted appeal. 2
For this reason, we dismiss this appeal for want of jurisdiction.
Opinion delivered November 17, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
1
We take judicial notice of the Clerk’s Record in one of Appellant’s related appeals, appellate cause
number 12-21-00166-CR. See Britt v. State, No. 12-21-00166-CR, 2021 WL 4898771 (Tex. App.—Tyler Oct. 20,
2021, no pet. h.) (mem. op., not designated for publication) (per curiam) (dismissing appeal for want of jurisdiction
where notice of appeal untimely filed); see also Fletcher v. State, 214 S.W.3d 5, 7 (Tex. Crim. App. 2007)
(appellate court may take judicial notice of own records in same or related proceedings involving same or nearly
same parties).
2
Appellant could seek permission from the court of criminal appeals to pursue an out-of-time appeal. See
Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-
00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not
designated for publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal
without permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 17, 2021
NO. 12-21-00193-CR
ROBERT DONALD BRITT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1061-17)
THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.