The judgment signed by the trial court on June 30, 2008 is erroneous in that it reflects on its first page in the 1

section labeled “Date Judgment Entered” the date of “2/22/2008”. 

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAMES RYAN PILARCIK,

 Appellant,

v.

THE STATE OF TEXAS,

 Appellee. 

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No. 08-08-00118-CR

Appeal from

195th District Court

of Dallas County, Texas

(TC # F-0723180-N)

MEMORANDUM OPINION

James Ryan Pilarcik appeals his conviction of possession of methamphetamine. We dismiss

the appeal for want of jurisdiction. 

On February 22, 2008, Appellant waived his right to a jury trial and entered a non-negotiated

plea of guilty. The trial court assessed punishment at a fine of $500 and confinement in the state jail

for 180 days. Appellant filed notice of appeal that same day and he filed a motion for new trial on

March 4, 2008. On April 27, 2008, the trial court granted Appellant’s motion for a new trial but did

not permit him to withdraw his plea of guilty. On June 26, 2008, the trial court conducted a new

punishment hearing and assessed Appellant’s punishment at confinement in the state jail for two

years. Appellant filed a motion for new trial and the trial court granted it. On June 30, 2008, the

trial court assessed Appellant’s punishment at a fine of $500 and confinement in the state jail for 180

days. Appellant did not file a notice of appeal following the imposition of this sentence in open 1

court.
A timely notice of appeal is necessary to invoke this Court’s jurisdiction. Olivo v. State, 918

S.W.2d 519, 522 (Tex.Crim.App. 1996). Appellant filed a timely notice of appeal following his

sentencing on February 22, 2008. However, the trial courtsubsequently granted Appellant’s request

for a new trial on the issue of punishment only. Then, the trial court re-sentenced Appellant and

Appellant again filed a motion for new trial. The trial court granted that motion on June 30, 2008

and sentenced Appellant in open court on that date. Appellant did not file a notice of appeal

following the imposition of sentence. 

The Rules of Appellate Procedure permit a party in a criminal case to file a premature notice

of appeal where the notice of appeal is filed after a finding of guilt has been made but before

sentencing. See TEX.R.APP.P. 27.1(b)(“In a criminal case, a prematurely filed notice of appeal is

effective and deemed filed on the same day, but after, sentence is imposed or suspended in open

court, or the appealable order is signed by the trial court. But a notice of appeal is not effective if

filed before the trial court makes a finding of guilt or receives a jury verdict.”). The notice of appeal

filed on February 22, 2008 does not constitute a premature notice of appeal because it was filed after

sentence was imposed in open court. The trial court then granted Appellant’s motion for new trial

and conducted a new punishment hearing. Appellant was required to file a new notice of appeal after

the trial court re-sentenced him on June 30, 2008. That notice of appeal was due to be filed on

July 30, 2008, thirty days after the day sentence was imposed in open court. See TEX.R.APP.P.

26.2(a)(1). Because Appellant did not file notice of appeal within this time-frame, we dismiss the

appeal for want of jurisdiction.

October 2, 2008 

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)