Michael Martinez v. State ( 2003 )

NO. 07-02-0434-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 17, 2003

______________________________



MICHAEL MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 42748-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before JOHNSON, C.J., REAVIS, J. and BOYD, S.J. ⁽¹⁾

MEMORANDUM OPINION

Pursuant to a plea bargain, appellant Michael Martinez pled guilty to aggravated robbery. Adjudication of guilt was deferred. Based on the State's motion, appellant was adjudicated guilty on November 15, 2001, and sentence of 12 years incarceration was imposed on that date.

On October 22, 2002, the clerk of this court received and filed a copy of a Motion to Extend Time to File Notice of Appeal and Prepare Clerk's Record for Appeal, captioned as cause number 42748-E in the 108th District Court of Potter County. The motion seeks extension of time for filing of notice of appeal from the judgment of conviction and sentence imposed on November 15, 2001 in cause number 42748-E. The notice attaches and incorporates a pro se notice of appeal captioned as appealing a conviction of appellant in cause number 44317-E in the 108th District Court of Potter County, and bearing a file mark from the clerk of this court dated January 8, 2002. The pending motion to extend time alleges that the pro se notice of appeal referencing cause number 44317-E was actually intended as a notice of appeal from cause number 42748-E, as evidenced by the substance of the notice.

Appellant's appeal based on the notice of appeal filed January 8, 2002, which referenced trial court cause number 44317-E was previously docketed as our cause number 07-02-0043-CR. Pursuant to motion by appellant and his attorney, this court dismissed appeal in 07-02-0043-CR by judgment dated November 7, 2002.

In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R. App. P. 25.2(a). ⁽²⁾ The notice of appeal must be filed within 30 days after the day sentence is imposed or after the day the trial court enters an appealable order, unless a timely motion for new trial is filed. TRAP 26.2(a). A motion for new trial may be filed by a criminal defendant no later than 30 days after the date sentence is imposed in open court. TRAP 21.4(a). The time for filing a notice of appeal may be extended for 15 days under certain circumstances. TRAP 26.3. If the time for filing a notice of appeal is to be extended, both a notice of appeal and a motion for extension of time which complies with TRAP 10.5(b) must be filed within the 15 day period. TRAP 26.3; Olivo v. State, 918 S.W.2d 519, 523-25 (Tex.Crim.App. 1996).

An untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See State v. Riewe, 13 S.W.2d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523-25.

Assuming, arguendo, that the Notice of Appeal file marked by the clerk of this court on January 8, 2002, was a notice of appeal as to cause number 42748-E instead of cause number 44317-E, the notice of appeal was not timely filed. Because the notice was not timely filed, we do not have jurisdiction over the appeal. And, once our jurisdiction over the appeal has been lost, we lack the power to invoke TRAP 2 or any rule to thereafter obtain jurisdiction. See Riewe, 13 S.W.3d at 413. Accordingly, this court does not have jurisdiction over this appeal and cannot extend the time for filing notice of appeal so as to obtain jurisdiction. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.

The appeal is dismissed for want of jurisdiction. Tex. R. App. P. 39.8, 40.2, 43.2.

Phil Johnson

Chief Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Further reference to a Rule of Appellate Procedure will be by reference to "TRAP ____."

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NO. 07-10-0072-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 22, 2010

______________________________

ELISEO RENE ZAMBRANO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242^ND DISTRICT COURT OF HALE COUNTY;

NO. B18071-0906; HONORABLE EDWARD LEE SELF, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

CONCURRING OPINION

            While I agree with the conclusion reached by the majority, I write separately to address an issue not raised by Appellant regarding the assessment of attorney's fees.[1]  The written judgment in this case orders the defendant to pay attorney's fees in the amount of $1,200.  In order to assess attorney's fees, a trial court must determine that the defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided.  Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon 2009).  Furthermore, the record must reflect some factual basis to support the determination that the defendant is capable of paying attorney's fees.  Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.).

            We are unable to find any evidence that would support a finding that Appellant had financial resources that would enable him to pay all or any part of the fees paid his court-appointed counsel.  Therefore, we conclude that the order to pay attorney's fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010).  No trial objection is required to challenge the sufficiency of the evidence regarding the defendant's ability to pay.  Id.  When the evidence does not support an order to pay attorney's fees, the proper remedy is to delete the order.  Id. at 557; See also Anderson v. State, No. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, at *9 (Tex.App.--Austin July 1, 2010, no pet.) (also modifying judgment to delete attorney's fees). Accordingly, I would modify the judgment to delete the order to pay attorney's fees, and affirm the judgment as modified

                                                                                    Patrick A. Pirtle

                                                                                          Justice

Do not publish.

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[1]Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses error that should be addressed in the interest of justice.  Hammock v. State, 211 S.W.3d 874, 878 (Tex.App.--Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment, does not involve the merits of the trial, and is easily corrected by modifying the judgment, I believe that the interest of justice dictates that we address the issue.