NO. 07-03-0354-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 9, 2004

______________________________

RICHARD JAMES WARD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 128TH DISTRICT COURT OF ORANGE COUNTY;

NO. A-960373-R; HONORABLE PATRICK A. CLARK, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

OPINION

Appellant Richard James Ward appeals from a judgment revoking his community

supervision and imposing sentence pursuant to conviction for felony driving while

intoxicated. We dismiss for lack of jurisdiction in part and affirm in part.
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BACKGROUND

On February 25, 2000, pursuant to a plea bargain, appellant pled nolo contendere

to the charge of felony driving while intoxicated. The trial court sentenced appellant to

incarceration in the Texas Department of Criminal Justice-Institutional Division for a period

of five years with a $1,000 fine. Pursuant to the plea bargain agreement, the confinement

portion of the sentence was suspended and appellant was placed on community

supervision for five years. Appellant did not file a notice of appeal until after revocation of

his community supervision.

The State’s second motion to revoke appellant’s community supervision was heard

on April 23, 2003. After a hearing on the motion, the trial court found that appellant had

violated two probation terms and revoked the order placing appellant on community

supervision.

Appellant contends that the evidence is insufficient to support his conviction for

felony DWI and that the evidence is insufficient to support the trial court’s finding that he

violated the terms of his probation. Appellant further contends that he received ineffective

assistance of counsel when trial counsel for the felony DWI failed to timely file a notice of

appeal.

APPELLATE JURISDICTION

The Rules of Appellate Procedure do not establish the jurisdiction of courts of

appeals; the Rules provide procedures which must be followed in order to invoke a court’s
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jurisdiction over a particular appeal. Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.

1996). If the jurisdiction of a court of appeals is not properly invoked, the power of the

appellate court to act is as absent as if it did not exist and the appeal will be dismissed for

lack of jurisdiction. See State v. Riewe, 13 S.W.3d 408, 413-14 (Tex.Crim.App. 2000);

Olivo, 918 S.W.2d at 523. 

If an appeal is not timely perfected, a court of appeals has no jurisdiction to address

the merits of the appeal and can take no action other than to dismiss the appeal. Slaton

v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Texas Rule of Appellate Procedure

26.2 requires a notice of appeal to be filed within 30 days after sentence is imposed unless

the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a). A defendant who

is placed on community supervision has a right to appeal the conviction only at the time

community supervision is originally imposed. TEX. CRIM. PROC. CODE ANN. art. 42.12 §

23(b) (Vernon Supp. 2003). However, if the community supervision is later revoked for

violation of terms of the community supervision, the right of appeal is limited to the

revocation. Id. See Manuel v. State, 994 S.W.2d 658, 660 (Tex.Crim.App. 1999).

Assertions that ineffective assistance of trial counsel resulted in denial of a meaningful

appeal may not be asserted via an untimely-filed appeal. Olivo, 918 S.W.2d at 525 n.8;

Ashorn v. State, 77 S.W.3d 405, 409 (Tex.App.--Houston [1st Dist.] 2002, pet. ref’d); Rivera

v. State, 940 S.W.2d 148, 149 (Tex.App.--San Antonio 1996, no pet.); George v. State, 883

S.W.2d 250, 251 n.3 (Tex. App.--El Paso 1994, no pet.).
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THE FELONY DWI CONVICTION

Appellant was convicted of felony driving while intoxicated and placed on community

supervision on October 13, 2000. No notice of appeal was filed. Rather, appellant filed a

general notice of appeal on July 16, 2003, following revocation of his community

supervision. Appellant’s notice of appeal relating to his conviction for felony DWI is

untimely. Because this court has no jurisdiction over an untimely appeal, we dismiss those

aspects of the appeal relating to the felony DWI conviction for want of jurisdiction. See

TEX. R.APP.P. 26.2(a); TEX.CRIM.PROC.CODE ANN. art. 42.12 § 23(b);Slaton, 981 S.W.2d

at 210; Olivo, 918 S.W.2d at 525 n.8.

REVOCATION PROCEEDING

When multiple violations of conditions of probation are found by the trial court, the

order revoking probation will be affirmed if one sufficient ground for revocation supports the

court’s order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980). Thus, in order

to prevail, an appellant must successfully challenge all of the trial court’s findings that

support the revocation order. Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.–Houston [14th

Dist.] 1999, no pet.) (citing Jones v. State, 571 S.W.2d 191, 193-94 (Tex.Crim.App. 1978)).

In the present case, the trial court found that appellant violated two conditions of his

probation. On appeal, appellant challenges only one of those findings. Because appellant

does not challenge one of the findings that he violated community supervision conditions,

we must affirm the trial court’s order revoking appellant’s community supervision.
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CONCLUSION

Those parts of appellant’s appeal addressing his conviction for felony DWI are

dismissed for want of jurisdiction. The remainder of the judgment is affirmed.

Phil Johnson

Chief Justice

Do not publish.