Frank Carr, Jr. v. State ( 2018 )

Opinion issued December 13, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00880-CR
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FRANK CARR, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 5
Harris County, Texas
Trial Court Case No. 5674
MEMORANDUM OPINION
In municipal court, a jury found appellant, Frank Carr, Jr., guilty of the traffic
offense of speeding1 and assessed his punishment at a $150.00 fine. Appellant gave
1
See TEX. TRANSP. CODE ANN. § 545.352(a) (West 2011).
an oral notice of appeal to the county criminal court at law after the jury verdict and
before filing his motion for new trial. On August 10, 2018, the county criminal court
at law dismissed the appeal for lack of jurisdiction, concluding that appellant’s oral
notice of appeal was insufficient to invoke that court’s jurisdiction. Appellant filed
a notice of appeal to this Court. We dismiss the appeal for lack of jurisdiction.
A person convicted of an offense in a municipal court of record may appeal
that conviction to a county criminal court. TEX. GOV’T CODE ANN. § 30.00014(a)
(West Supp. 2018). The county criminal court may not retry the case but determines
the appeal on the basis of any errors shown in the municipal court record. See id.
§ 30.00014(b); Swain v. State, 319 S.W.3d 878, 879 (Tex. App.—Fort Worth 2010,
no pet.). The county criminal court may affirm, reverse, or reform the municipal
court’s judgment. TEX. GOV’T CODE ANN. § 30.00024(a) (West Supp. 2018); see
Alexander v. State, 240 S.W.3d 72, 74 (Tex. App.—Austin 2007, no pet.). The
defendant may then appeal to the court of appeals if (1) the county criminal court
affirms the municipal court’s judgment and the fine assessed against the defendant
exceeds $100, or (2) the sole issue is the constitutionality of the statute or ordinance
on which a conviction is based. TEX. GOV’T CODE ANN. § 30.00027(a) (West Supp.
2018); see Flores v. State, 462 S.W.3d 551, 552 (Tex. App.—Houston [1st Dist.]
2015, no pet.).
2
Here, the county criminal court at law concluded that it did not have
“jurisdiction to hear [appellant’s] appeal” of the municipal court judgment and
dismissed the appeal. And, the record filed in this Court reflects that appellant’s sole
issue in the county criminal court at law was not the constitutionality of the statute
on which his conviction was based.2 Accordingly, we conclude that appellant does
not have a statutory right to appeal the county criminal court at law judgment to this
Court, and we do not have jurisdiction over the appeal. See Flores, 462 S.W.3d at
552; Jamshedji v. State, 230 S.W.3d 224, 225 (Tex. App.—Houston [14th Dist.]
2006, pet. ref’d).
Even if appellant had a statutory right of appeal, we could not exercise
jurisdiction over an appeal without a timely filed notice of appeal. See TEX. R. APP.
P. 26.2(a); see also Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012);
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also TEX. GOV’T
CODE ANN. § 30.00027(b). A defendant’s notice of appeal is timely if filed within
2
The record reflects that appellant raised two issues in his motion for new trial in
municipal court: “(1) the accuracy and precision of the laser used to measure the
speed of Appellant’s vehicle was not established at trial; and (2) the State failed to
provide timely pretrial discovery.” Appellant then “[brought] forward the first
issue” to the county criminal court at law. The record, thus, demonstrates that
appellant did not challenge the constitutionality of the speeding statute in the county
criminal court at law. See Wass v. State, No. 05-17-00649-CR, 2017 WL 3275918,
at *1 (Tex. App.—Dallas Aug. 1, 2017, no pet.) (mem. op., not designated for
publication); Geraci v. State, No. 03-17-00023-CR, 2017 WL 1315347, at *2 n.1
(Tex. App.—Austin Apr. 6, 2017, no. pet.) (mem. op., not designated for
publication).
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thirty days after the date sentence is imposed or suspended in open court or the trial
court enters an appealable order. TEX. R. APP. P. 26.2(a)(1); see Swain, 319 S.W.3d
at 879–80.
Here, the trial court signed the order of dismissal on August 10, 2018.
Appellant’s notice of appeal, therefore, was due to be filed no later than September
10, 2018. See TEX. R. APP. P. 4.1, 26.2(a)(1). His notice of appeal, filed on
September 20, 2018, was untimely to perfect an appeal of the county criminal court
at law’s order, and we have no basis for jurisdiction over the appeal. See Swain, 319
S.W.3d at 880; see, e.g., Carrillo v. State, No. 01-11-00495-CR, 2011 WL 4507218,
at *1 (Tex. App.—Houston [1st Dist.] Sept. 29, 2011, no pet.) (mem. op., not
designated for publication).
Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Justices Higley, Lloyd, and Caughey.
Do not publish. TEX. R. APP. P. 47.2(b).
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