Paul E. Phillips v. State

NO. 12-02-00167-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS PAUL E. PHILLIPS, § APPEAL FROM THE APPELLANT V. § COUNTY COURT AT LAW #2 THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION Paul E. Phillips ("Appellant") pleaded guilty to the offense of theft by check and was sentenced to 180 days in the Smith County Jail, probated for 18 months. Following the State's application to revoke Appellant's probation, Appellant was sentenced to serve the original sentence of 180 days in the Smith County Jail. In one issue, Appellant contends that his sentence should be set aside and a new trial granted in his favor because the trial court did not properly admonish him prior to his plea of guilty. Appellant failed to timely file a notice of appeal; therefore, we dismiss this appeal for want of jurisdiction. Background On May 10, 2001, Appellant was charged by complaint with theft by check in an amount greater than twenty dollars but less than five hundred dollars. On November 30, Appellant pleaded guilty to this charge, and the trial court sentenced him to 180 days in jail, probated for 18 months. On March 19, 2002, the State filed an application to revoke Appellant's probation, alleging that he failed to comply with various conditions of his probation. On March 21, the trial court issued a capias to procure Appellant's arrest and Appellant was arrested that same day. On April 4, Appellant pleaded "true" to seven of the allegations in the State's application to revoke Appellant's probation, and the trial court sentenced Appellant to serve the original sentence of 180 days in the Smith County Jail. At the end of Appellant's probation revocation hearing, the trial court granted Appellant the right to appeal. On April 11, Appellant filed a general notice of appeal and on May 9, Appellant amended that notice of appeal, stating that he had obtained permission from the trial court to "appeal from said judgment and sentence." In one issue, Appellant challenges his November 30, 2001 guilty plea and contends that his sentence should be set aside and a new trial granted in his favor because the trial court failed to properly admonish him before he pleaded guilty. Because Appellant failed to timely file a notice of appeal from the November 30, 2001 judgment, we dismiss his appeal for want of jurisdiction. Jurisdiction When an individual is placed on probation and seeks to challenge matters involving conviction and punishment, he must do so immediately after being placed on probation. Serna v. State, 986 S.W.2d 693, 695 (Tex. App.-Amarillo 1998, no pet.); Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2003). Once probation is revoked, however, the complainant may appeal the revocation. Id. Therefore, when the legislature allowed the accused to "appeal the revocation," it meant that he can only appeal matters relating to the revocation itself. Id.; see also Standley v. State, 517 S.W.2d 538, 541 (Tex. Crim. App. 1975) (holding that one who fails to appeal when placed on probation waives his right to review). In order to perfect an appeal from his guilty plea, Appellant must have filed his notice of appeal within thirty days after the day sentence was imposed or suspended in open court, unless he timely filed a motion for new trial. Tex. R. App. P. 26.2(a)(1). If he timely filed a motion for new trial, then the notice of appeal could have been filed within ninety days after the day sentence was imposed or suspended in open court. Tex. R. App. P. 26.2(a)(2). Appellant had thirty days from the time sentence was imposed or suspended in open court to file a motion for new trial. Tex. R. App. P. 21.4(a). In the instant case, Appellant did not meet any of these deadlines. In order for this court to have jurisdiction over his appeal, Appellant must have filed a notice of appeal within thirty days of November 30, 2001, the date his guilt was adjudicated and his sentence was imposed or suspended in open court. Appellant's notice of appeal, filed on April 11, 2002, was not timely filed; therefore, we do not have jurisdiction over his appeal from the original conviction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that if an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal). Accordingly, Appellant's appeal is dismissed for want of jurisdiction. SAM GRIFFITH Justice Opinion delivered May 30, 2003. Panel consisted of Worthen, C.J., and Griffith, J. (DO NOT PUBLISH)