Opinion
No. 14-08-00469-CR, 14-08-00475-CR
Opinion filed October 2, 2008. DO NOT PUBLISH TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause No. 1153992.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
MEMORANDUM OPINION
Appellant entered a plea of guilty without an agreed recommendation on punishment to burglary of a habitation with intent to commit theft. On April 10, 2008, the trial court deferred a finding of guilt and placed appellant on community supervision for ten years. Appellant filed a motion for new trial on May 9, 2008, which the trial court denied on June 3, 2008. Appellant's notice of appeal was not filed until June 4, 2008. Rule 21 of the Texas Rules of Appellate Procedure governs new trials in criminal cases. TEX. R. APP. P. 21. A new trial is defined as "the rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." TEX. R. APP. 21.1. Because there is no finding or verdict of guilt in a deferred adjudication, the Court of Criminal Appeals has held that a motion for new trial is not permissible when a defendant is placed on deferred adjudication. Donovan v. State, 68 S.W.3d 633, 636 (Tex.Crim.App. 2002). The Court of Criminal Appeals noted that a deferred adjudication defendant could move to withdraw his original plea after requesting final adjudication, at which time the trial court would be empowered to rule on the motion or hear evidence concerning any reasons for permitting withdrawal, including allegations that the plea was entered involuntarily. Id. at 637. To perfect an appeal from the deferred adjudication order, appellant was required to file his notice of appeal within thirty days after the order was rendered on April 10, 2008. See TEX. R. APP. P. 26.2(a)(1). The filing of a motion for new trial after an order deferring adjudication does not extend the time for filing notice of appeal under Rule 26.2(a)(2). Garcia v. State, 29 S.W.3d 899, 901 (Tex.App.-Houston [14th Dist.] 2000, no pet.); see also Labib v. State, 239 S.W.3d 322, 329-30 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Murray v. State, 89 S.W.3d 187, 188 (Tex.App.-Dallas 2002, pet. ref'd); Hammack v. State, 963 S.W.2d 199, 200 (Tex.App.-Austin 1998, no pet.); but see Vu v. State, 985 S.W.2d 613, 614 (Tex.App.-Fort Worth,1999, no pet.) (treating appellant's motion to withdraw plea as untimely motion for new trial after order deferring adjudication). In response to this Court's notice of intent to dismiss, appellant argues that his motion for new trial is the functional equivalent of a motion to withdraw his guilty plea, and he has the right to file a motion to withdraw his plea after imposition of deferred adjudication, citing Labib, 239 S.W.3d at 330-31. A motion to withdraw a guilty plea does not extend the time for perfecting an appeal, however. See TEX. R. APP. P. 26.2(a)(2). An order denying a motion to withdraw a guilty plea is also not a separately appealable order. See generally TEX. CODE CRIM. PROC. ANN. art. 44.02 (Vernon 2006). Therefore, even if this Court construed the motion as a motion to withdraw the guilty plea, appellant's notice of appeal is untimely. 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). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and it can take no action other than to dismiss the appeal. Id. Accordingly, the appeals are ordered dismissed.
The Harris County District Clerk's office assigned this Court a separate appeal from the denial of appellant's motion for new trial. Therefore, these two appeals concern the same underlying offense.