Darren Swain v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-024-CR
DARREN SW AIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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In July 2008, a jury convicted Appellant Darren Swain in a municipal court of
record of itinerant vending without a license, and the trial court assessed a fine
against him in the amount of $550. After the trial court denied Swain’s motion for
new trial, he appealed to the county criminal court. See Tex. Gov’t Code Ann.
§ 30.00014(a) (Vernon Supp. 2009). On November 3, 2009, the county criminal
court delivered a written opinion affirming the municipal court’s judgment. See id.
1
 See Tex. R. App. P. 47.4.
§ 30.00024(a)(1), (c). On November 19, 2009, Swain filed a “Motion for Rehearing
or, in the Alternative, Motion for New Trial.” 2 On January 20, 2010, seventy-eight
days after the county criminal court had affirmed the municipal court’s judgment,
Swain filed his notice of appeal from the county criminal court’s judgment. See id.
§ 30.00027(a) (Vernon 2004).
The State filed a motion to dismiss Swain’s appeal. 3 It argues that Swain
failed to timely perfect this appeal because (1) under rule of appellate procedure
26.2(a)(1), he did not file his notice of appeal within thirty days of the county criminal
court’s judgment affirming the municipal court’s judgment and (2) even though Swain
filed a motion for new trial after the county criminal court had affirmed the municipal
court’s judgment, rule 26.2(a)(2)’s ninety-day deadline for filing a notice of appeal
when a motion for new trial is filed does not apply in this case because Swain was
convicted after a jury trial in a municipal court of record and thereafter appealed to
the county criminal court, which did not conduct a trial de novo. According to the
State, rule 26.2(a)(2) does “not apply to an appeal from a municipal court of record
to a county court, and then to a court of appeals.” Therefore, “[t]here is no reason
for [Swain] to file a motion for new trial at the county level since the trial was held in
the municipal court.” W e agree with the State.
2
 The record does not demonstrate that the county criminal court ever ruled
on this motion.
3
 Swain filed a response to the State’s motion to dismiss.
2
A person convicted of an offense in a municipal court of record may appeal
that conviction to a county criminal court. Id. § 30.00014(a). The county criminal
court may not retry the case; instead, it must determine the appeal on the basis of
the errors shown in the municipal court record. Id. § 30.00014(b) (“An appeal from
the municipal court of record may not be by trial de novo.”) (emphasis added). The
county criminal court may affirm, reverse, or reform the municipal court’s judgment.
Id. § 30.00024(a); 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 the county
criminal court affirms the municipal court’s judgment and if the fine assessed against
the defendant exceeds $100. Tex. Gov’t Code Ann. § 30.00027(a).
Under rule of appellate procedure 26.2(a)(1), a defendant’s notice of appeal
must be filed within thirty days after the court enters an appealable order. Tex. R.
App. P. 26.2(a)(1); see Garza v. State, Nos. 14-06-00595-CR, 14-06-00596-CR,
2006 W L 2075147, at *1 (Tex. App.—Houston [14th Dist.] July 27, 2006, no pet.)
(mem. op., not designated for publication); Croes v. State, No. 14-06-00361-CR,
2006 W L 1458485, at *1 (Tex. App.—Houston [14th Dist.] May 25, 2006, no pet.)
(mem. op., not designated for publication); Sharp v. State, No. 05-04-00022-CR,
2004 W L 60770, at *1 (Tex. App.—Dallas Jan. 14, 2004, no pet.) (not designated for
publication); see also Tex. Gov’t Code Ann. § 30.00023(b) (Vernon 2004) (“The
appellate courts may make and enforce all rules of practice and procedure that are
not inconsistent with law and that are necessary to expedite the dispatch of appeals
3
from the municipal courts of record.”). Rule 26.2(a)(2) provides that a notice of
appeal must be filed “within 90 days after the day sentence is imposed or suspended
in open court if the defendant timely files a motion for new trial.” Tex. R. App. P.
26.2(a)(2). A notice of appeal that complies with the requirements of rule 26 is
essential to vest the court of appeals with jurisdiction. Slaton v. State, 981 S.W .2d
208, 210 (Tex. Crim. App. 1998). W ithout a timely filed notice of appeal, we lack
jurisdiction over the appeal. Id.
Here, Swain filed his notice of appeal seventy-eight days after the county
criminal court had affirmed the municipal court’s judgment. Because Swain did not
file the notice of appeal within thirty days of the county criminal court’s judgment, we
lack jurisdiction over this appeal unless rule 26.2(a)(2) applies to extend the deadline
for filing the notice of appeal. See id.
It is well established that the granting or denying of a motion for new trial lies
within the discretion of the trial court. Lewis v. State, 911 S.W .2d 1, 7 (Tex. Crim.
App. 1995). “A plain reading of [rule of appellate procedure 26.2(a)] reveals that a
timely-filed motion for new trial can only extend the deadline for filing an appeal from
the imposition or suspension of a sentence; it cannot extend the deadline for filing
an appeal from a mere ‘appealable order.’” Martin v. State, No. 02-06-00272-CR,
2007 W L 529905, at *1 (Tex. App.—Fort W orth Feb. 22, 2007, no pet.) (mem. op.,
not designated for publication); see Tex. R. App. P. 26.2(a).
4
In this case, the municipal court of record conducted Swain’s jury trial and
imposed the $550 fine. The county criminal court did not impose or suspend
Swain’s sentence. Swain’s appeal to the county criminal court was not a trial
de novo; instead, the county criminal court exercised criminal appellate jurisdiction
under government code section 30.00014(a). See Tex. Gov’t Code Ann.
§ 30.00002(1)(A) (Vernon 2004) (defining “[a]ppellate court” to mean, among other
things, the county criminal court), § 30.00014(a) (providing that the county criminal
courts have jurisdiction over appeals from a municipal court of record),
§ 30.00014(b) (providing that “[a]n appeal from the municipal court of record may not
be by trial de novo”) (emphasis added). Accordingly, Swain’s motion for new trial
challenging the county criminal court’s judgment that affirmed the municipal court’s
judgment did not operate to extend the deadline for filing the notice of appeal under
rule 26.2(a)(2).
Swain’s notice of appeal was untimely. Accordingly, we grant the State’s
motion to dismiss and dismiss the appeal for want of jurisdiction. See Tex. R. App.
P. 42.3(a), 43.2(f).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
PUBLISH
DELIVERED: July 8, 2010
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