CHAUNCEY DEANDRE REED v. THE STATE OF TEXAS

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Court of Appeals of Texas, El Paso.

CHAUNCEY DEANDRE REED, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-18-00013-CR

Decided: March 09, 2018

Before McClure, C.J., Rodriguez, and Palafox, JJ.

MEMORANDUM OPINION

Chauncey Deandre Reed is attempting to appeal his conviction of continuous sexual abuse of a child under the age of fourteen (Count I). According to the notice of appeal, a jury found Reed guilty of Count I of the indictment, but the trial court has not yet sentenced him. Reed also states in his notice of appeal that he filed a motion for new trial. We dismiss the appeal for lack of jurisdiction.

Under Article V, section 6 of the Texas Constitution, an intermediate appellate court has jurisdiction over “all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” TEX.CONST. art. V, § 6. Under Article 44.02, a defendant in a criminal case is afforded a right to appeal, but the statute has been construed as only permitting an appeal from a final judgment of conviction. TEX.CODE CRIM.PROC.ANN. art. 44.02 (West 2006)(“A defendant in any criminal action has the right of appeal ․”); see State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex.Crim.App. 1990). The term “judgment” in this context is understood as defined in Article 42.01 of the Code of Criminal Procedure. Sellers, 790 S.W.2d at 321 n.4. Article 42.01 defines “judgment” as the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant. TEX.CODE CRIM.PROC.ANN. art. 42.01 (West Supp. 2017). The written judgment must include the term of sentence, the date sentence is imposed, and the date sentence is to commence and any credit for time served. TEX.CODE CRIM.PROC.ANN. art. 42.01, § 1(15), (17), (18). Sentence has not been assessed or imposed in open court, and the trial court has not entered the written judgment. Consequently, we do not have jurisdiction of this appeal.1 The appeal is dismissed for lack of jurisdiction.

FOOTNOTES

1.   In a criminal case, the deadline for filing the notice of appeal begins to run on the date the defendant is sentenced in open court. See TEX.R.APP.P. 26.2. The notice of appeal filed by Appellant is premature because he has not yet been sentenced and sentence has not been imposed or suspended in open court. See TEX.R.APP.P. 27.1(b). The premature notice of appeal will be deemed filed on the date sentence is imposed or suspended in open court. Id.

GINA M. PALAFOX, Justice

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