Michael B. Ellis v. State

IN THE TENTH COURT OF APPEALS No. 10-98-082-CR MICHAEL B. ELLIS, Appellant v. THE STATE OF TEXAS, Appellee From the County Court at Law No. 2 McLennan County, Texas Trial Court # 974154 CR2 MEMORANDUM OPINION The State of Texas has filed a motion to dismiss for want of jurisdiction in Cause Number 98-082-CR. We will grant the motion and dismiss the appeal for want of jurisdiction. Michael B. Ellis was found guilty of a traffic violation—failing to wear a safety belt—in the Municipal Court of the City of Beverly Hills. He appealed the conviction to the County Court at Law No. 2 of McLennan County. After a trial de novo, the county court at law found Ellis guilty and assessed punishment of a $50 fine. Ellis filed a general notice of appeal and filed a brief raising four points of error. He has informed this court that no reporter's record will be filed. The State's motion to dismiss correctly states that “[t]he right to appeal a criminal conviction is a substantive right solely within the province of the Legislature.” Lyon v. State, 872 S.W.2d 732, 734 (Tex. Crim. App. 1994). The Legislature has restricted the right of appeal in certain cases: The Courts of Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law does not exceed one hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the conviction is based. Tex. Code Crim. Proc. Ann. art. 4.03 (Vernon Supp. 1998). Article 4.03 applies to this cause. The trial was de novo in the county court at law on appeal from the municipal court, the fine assessed does not exceed $100, and Ellis does not contest the constitutionality of the statute or ordinance upon which he was convicted. Ex parte Brand, 822 S.W.2d 636, 639 n.3 (Tex. Crim. App. 1992); Meisner v. State, 907 S.W.2d 664, 666 (Tex. App.—Waco 1995, no pet.); Resnedez v. State, 738 S.W.2d 41, 42 (Tex. App.—Houston [1st Dist.] 1987, no pet.). We grant the State's motion and dismiss the appeal for want of jurisdiction. PER CURIAM Before Chief Justice Davis, Justice Cummings, and Justice Vance Dismissed Opinion delivered and filed July 22, 1998 Do not publish ; FRANK G. McDONALD Chief Justice (Retired) Before Chief Justice Davis, Justice Vance and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed January 27, 1999 Do not publish