NO. 07-03-0354-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B JUNE 9, 2004

______________________________ RICHARD JAMES WARD, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 128TH DISTRICT COURT OF ORAN GE COUNTY; NO. A-960 373-R; HO NORABLE PATRICK A. CLAR K, JUDGE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. OPINION Appell an tRichard James War d appeal s from a ju dgment re voking h is commun ity s uperv ision and imposing sentence pursuant to conviction for felon y driving while intoxicated. We dismiss f or lack of jurisdi ction in part and affirm in part.-2- BACKGROUND On February 25, 2000, pursuant to a plea bargain, app ellant pled nolo con tendere to the charge of felony driving while intox ica te d. The tr ial cour t sentenced appel lant 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 s entenc e was sus pended a nd appel lant wasplaced on commun ity 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’scommunity supervision was heard o n April 2 3, 2003. After a h earing o n the moti on, the tr ial cour t found th at appel lant ha d violated two probation terms and r evoked th e order p lacing a ppellan t on commu nity supervision. Appellant

contends that the evidence is insufficient to support hi s conviction for felonyDWI and t hat the e vidence is insuf ficient 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. APPELLA TE JURIS DICTION The R ule s of Appell ate Pr ocedur e do not esta bli sh th e jur isdi cti on of court s of appeals; the Rules provide procedures which mu st be follow ed in ord er to invo ke a cou rt’s-3-

jur isdi cti on over a particu lar app eal. Olivo v. State , 918 S .W .2d 51 9 , 523 (Tex. Crim. App. 1996 ). If the jurisdiction of a court of ap pea ls i s notproper ly i nvoked, the p ower of the app ellate cou rt to ac t is as abs en t as if it did not exi st an d the appeal wil l be dismi ssed f or lack of jurisdiction

. See Sta te v. Ri ewe , 13 S. W.3d 408, 413-14 (Tex .Cri m.App. 2000); Olivo , 918 S .W .2d at 5 23. If an appeal is not timely perfected, a court of appea ls has no jurisdiction to address the merits of the appeal and can take no actio n other th an to dis miss the a ppeal. Slaton v. State , 981 S.W. 2d 208, 2 10 (Tex. Crim.App . 1998). Texas Rule of Appell ate Procedu re 26.2 requires a notice of appeal to be filed within 30days after sentence is imposed unless the defendant timely files a motion for new t rial. T EX . R. A PP . P. 26.2(a). A defendant who is placed on community supervision has a right to appeal the convict ion only at the time community

su p ervision is origi nally im posed. T EX . C RIM . P ROC . C ODE A NN . art. 42.12 § 23(b) (Vernon Supp. 20 03). However, if the com munity supervision is later revoked for violation of terms of the community supervision, the right of appe al is l imited to the revocation. Id. See Manuel v . State , 994 S.W. 2d 658, 6 60 (Tex. Crim.App . 1999). Assertions that ine ffective a ssistance of trial c ounsel resulted in denial of a meaning ful appeal may not b e asserte d via an untime ly-filed appe al. Olivo , 918 S.W.2d at 525 n.8; Ashorn v. State , 77 S.W.3 d 405, 40 9 (Tex.A pp.--Hous ton [1st D ist.] 200 2, pet. re f’d); Rivera v. State , 940 S.W.2d 148, 149 (Tex.App.--San Antonio 1996, no pet.); George v. State , 883 S.W.2d 25 0, 251 n. 3 (Tex. A pp.--El P aso 1994 , no pet.)

.-4- THE FEL ONY DWI C ONVICTION Appellant

was conv icted of felony d riving w hile in toxicate d and pl aced on community supervision on October 13, 2000. No notice of appeal was filed. Rather, appellant fil ed a general notice of appeal on July 16, 2003, fol lowing revocatio n of his community supervision. Appell ant’s no tice of a ppeal re lating to h is conviction for felony DWI is untimely. Because this court has nojurisdiction over an untimely appeal, we dismiss those a spects of the ap peal rel ating to the felon y DWI con viction for want of jurisdi ction. Se e T EX . R. A PP . P. 26.2(a ); T EX . C RIM . P ROC . C ODE A NN . art. 42.12§ 23(b); Slaton , 981 S.W.2d at 210; Olivo , 918 S.W. 2d at 525n.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. S tate , 605 S.W .2d 924, 926 (Tex .Crim.App . 1980). Thus, in order to prevail, an appellant must successfully challeng e all of the t r ial court’s findings that support the revocation ord er. Joseph v. State , 3 S.W.3d 627, 640 (Tex.App.–Houston [14 th Dist.] 1999, no pet.) (citing Jones v. State , 571 S.W.2d 191, 193-94 ( Tex.Cri m.App. 19 78)). In the presentcase, the trial court found that appellant violated two co nditions 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 supervisi on.-5- CONCLUS ION Th ose parts of a ppellan t’s appe al addre ssing hi s convic tion for f elony DW I are dismissed for want of jurisdiction. The remainder of the judgment is affirmed.

Phil Johnson Chief Justice Do not pu blish.