### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING

NO. 03 - 21 - 00057 - CR
Kirk Wayne McBride, Sr. , Appellant

v. The State of Texas , Appellee

FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR94 - 311 , THE HONORABLE R. BRUCE BOYER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
We issued our o riginal opinion in this case March 31, 2021 in which we concluded that we lacked juri sdiction over appellant ’ s appeal of his sentence and a purport ed

“ Order denying the Appellant ’ s M o tion for Entry of J udgment. ” 1 See McBride v. State , No. 03

- 21

- 00057

- CR, 2021 WL 1202092, at *1 (Tex. App.

— Austin Mar. 31, 2021, p et. ref’d) (mem. op., not designated for publication). Appellant has now filed a motion for rehearing

. S ee Tex. R. App. P. 4 9. 1. We overrule app ellant ’ s motion for rehearing , withdraw our previous opinion, vacate our p revio us judgment , and issue th is substitute opinion and a new jud gment
. Tw enty
- five years ago, a jury found appellant guilty of aggravated sexual as sault

an d a ssessed punishment , enhan ced by two previo us felony conviction s , at ninety

- nine years. In

1 The record bef ore us contains no written , signed order den ying appellant ’ s M otion for Entry of Ju dgment , filed on Febr uary 2 , 2021

.2 two issues, appellant contends that we erred by finding that we lacked jurisdiction because the record “ un equivocally shows that there is an outstanding Jud gment of Conviction i mp osing sentence from which to appeal

. ”
BACKGROUND Appellant was charged in four indictments with sexual assault, aggravated sexual assault, and aggravated kidnapping. McBride v. State , No. 03

- 95

- 00596

- CR, 1997 WL 123560, at *1 (Tex. App

. — Au stin Mar. 20, 1997, pet. ref’d) (per curiam) (not designated fo r publication). He was convicted on each of the indictments following a consolidated trial, but this Court reve rsed his convictions after we determined that a blood sample drawn from appel la nt was unlawfully seized. See McBride v. State , 840 S.W.2d 111, 114

– 17 (Tex. App.

— Austin 1992, pet. ref’d). He was retried on the original indictments, but the trial ended in a mistrial on appellant ’ s motion. McBride , 1997 WL 123560, at *1. He was th en t wice reindicted on aggra vated sexual assault : cause number CR90

- 157 (as originally indicted) became cause number CR94

- 311 and, finally, CR95

- 129. Id

. The latter indictment contained two counts, alleging sexual assault aggravated by (1) fear of immine nt infliction of death, seri ous bodily injury, and kidnapping and (2) use of a deadly weapon, respectively

. Id . The jury charge authorized conviction on either theory. Id . Following a trial, the jury returned a general verdict of guilty and sent enced a pp e llan t to ninety

- nine year s’ confinement. Id . at *4. Several months before his retrial in cause number CR95

- 129, appellant , pursuant to a plea bargain, pleaded guilty in cause numbers CR 94

- 311,

- 312,

- 313, and

- 314 in exchange for a recommended senten ce of thirty years’ confinem ent. A fter receiving the pre

- sentencing investigation, the trial court rejected the plea agreement s at a sentencing hearing on3 April 11, 1995. The trial judge informed appellant that he was rejecting the agreement s and asked h im wh ether he wished to with draw his plea s . Appellant declined, and the trial judge f ound him “ guilty as charged of all cases,” stated that “the sentences will be 60 years in each case,” and remanded him to the s heriff’s custody. Nevertheless, the trial ju dge then explained , “That is not the plea agreement. You can withdraw your pleas of guilty if you wish or, if you wish, you can accept 60 years in the Texas Department of Criminal Justice. You can talk to your attorney about it and let me know.” After a de lay, appellant ’s attorn ey returned to the courtroom and indicated on the record that appellant “wishe[d] to proceed to trial.” The trial court stated that appel lan t “will be allowed to withdraw his plea [s] and his cases will be reset for trial”; on t he do cket sheet for cause nu mber CR94

- 311 , the trial judge noted that appellant had withdrawn his plea and t he case was to be reset. However , before the trial could be held, the case was reindicted in cause number CR95

- 129. Cause number CR94

- 311 was subs eq uen tly dismissed upon moti on of the State. I d ., at *1

. On January 28, 2021, approximately twenty

- five years after his conviction in cause number CR95

- 129 , appellant filed a two

- paragraph Notice of Appeal in cause number CR94

- 311 , appea ling “ from the Sen ten ce t hat was pronounced and imposed against the Defendant on April 11, 1995, and Order denying the Appellant’s Motion for Entry of Judgment.” The notice stated it was “an appeal from a Plea Bargain Agreement and the punishment imposed exceeded the recom menda ti on of the prosecution.” The sole “Motion for Entry of Judgment” in the record before us was filed after the notice of appeal , on February 2, 2021; no signed order denying the motion appears in the recor d.4 DISCUSSIO N A ppellant filed the present notice of appeal under cause number CR94

- 311, in wh ich his guilty plea was withdrawn and the indictment dismissed ; he a ppeals from the sentence

“ pronounced and imposed ” on April 11, 199 5, the date of t he plea proceeding. Neve rth eless , we understand the cl aims ma de in appellant ’ s brief and motion for rehearing to amount to an al legation of a double jeopardy violation and challeng e to his subs equent reindictment , trial, and ninety

- nine

- yea r sentence in cause number CR95

- 129 . Appellant appe ars to allege that any fi nding that he withdrew his guilty plea is unsupported by the record and suggests that cause number CR9 4

- 311 was dismissed only after jeopardy had attached. In support of his contention, appel lant note s that during the plea proce ed ing , the trial cou rt foun d him guilty and stated that

“ the sentence s will be 60 years in each cas e. ” The Court of Criminal Appeals ( “ CCA ” ) has held that an appel lant ’ s failure to comply with the technical requirements of notice s of appeal , including pro viding the correct

cause n umber, is insufficient to divest a court of appeals of jurisdiction. See Harkcom v. State , 484 S.W.3d 432, 434 (Tex. Crim. App. 2016); Gonzales v. State , 421 S.W.3d 674, 675 (Tex. Crim. App. 2014); Few v. State , 230 S.W.3d 184, 1 90 (Tex. Crim. App . 2007). In F ew , as here, the appellant was re

- i ndicted and convicted on the new indictment

. 230 S.W.3d at 185

– 86

. Following his conviction, the trial court dismissed the original indictment. Id . Although Few mistakenly wrote the o ri ginal cause number on his notice of appeal, the CCA he ld that the c ourt of appeals retained jurisdiction because it was “ app arent from the record ” that all parties knew that Few expressed his desire to appeal his conviction

. Id . at 185, 190. In explain ing the rationale for its h olding, the CCA emphasized the amendment of the Rules of Appellate Procedure in 2002 “to prevent trivial, repairable m istakes or defects from5 divesting appellate courts of the jurisdiction to consider the merits of both State and defense appeals i n crimina l cases.” Id . at 187 ; see Tex. R. App. P. 25.2(f) . The Court noted that it has “instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirem ents not absolutely necessary to effect the purpo se of a ru le.” Few , 230 S.W.3d at 189. Criticizing its older cases as elevating “form over substance,” the Court stated, “ A person’s right to appeal a civil or criminal judgment should no t depend upon trac king thro ugh a trail of technicalities.” Id .; see Gonzales , 421 S.W.3d at 675. The CCA has subsequently held that “[a]ll that is required [to constitute a notice of appeal] is that the notice be in writing, be submitted within thirty da ys or ninety days after

sen tencing, as appropriate, and show the party’s desire to appeal from the judgment or other appealable order.” Harkcom , 484 S.W.3d at 434. Thus, we will not con clude that we lac k jurisdiction as a result of appellant ’ s erroneousl y filing his appe a l under c ause number CR94

- 311. A l though appellant ’ s mistakenly filing his notice of appeal under the wrong cause number does not deprive us of juri sdiction , appe llant has already filed a noti ce of appeal under cause number CR95

- 129

. S ee McBride , 1997 W L 123560 , at *1

. “ [O]nly one appeal can be made from a verdict and judgment of conviction in any case. ” Hines v. State , 70 S.W. 955, 957 (Tex. Crim. App. 1902); Arabzadegan v. State , No. 03

- 19

- 00728

- CR, 2020 WL 370880, at *1 (Tex. App.

— Austin Jan. 23, 20 20, pet. r e f ’ d) (mem. op., not designated for publication) ; see McDonald v. State , 401 S.W.3d 360, 362 (Tex. App.

— Amarillo 2013, pet. ref ’ d) (dismissing appeal for want of ju risdiction because appella n t was not entitled to more than one appeal f rom convict ion ) ; Cole man v. State , No. 03

- 11

- 00648

- CR, 2011 WL 6118604, at *1 (Tex. App.

— Austin Dec. 8, 2011, no pet.) (mem. op., not designated for publication) (same)

. Becau se6 appellant directly ap pealed his conviction i n cause number CR95

- 129 app roxima tely tw enty
- five year s ago, we lack jurisdiction to consider this appeal

. To t he extent that appellant insists he was not mistaken in fi ling his notice of appeal under cause number CR94

- 3 11 , we reiterate th at there is no judgment imposing sentence from w hich to app eal. Abbo tt v. State , 271 S.W.3d 694, 697 n.8 (Tex. Crim. App. 2008) (noting Court’s prior recognition of “long

- establishe d rule that a defendant’s general right to app eal under Article 44.02 ‘has always been limited to appeal’ from a ‘final ju dgment.’”) ; Chapman v . State , No. 01

- 14

- 00980

- CR, 2016 WL 635283, at *1 (Tex. App.

— Houston [1st Dist.] Feb. 11, 2016 , no pet.) (mem. op., not designated for publication) (concluding that because charge was dismissed and there was no judgment from which to appea l, app ellate cou rt had no jurisdiction over appeal); Valencia v. State , No. 05

- 06

- 01727

- CR, 2007 WL 196449, at * 1 (Tex. App.

— Dallas Jan. 26, 2007, no pet.) (mem. op., not designated for publicati on) (dismissing appeal for lack of jurisdiction where re cord contai ned no jud gment of conviction and thus nothing was presented for review)

. Mo reover, the un t imeli ness of the appeal likewise deprives us of jur isdiction. As noted above, a notice of appeal cha llenging a conviction or order must be filed within thirty or ninety day s after the sentence is imposed in open court or the order is entered, depending on whether the defendant timely files a motion for new trial. Chapman , 2016 WL 635283, at *1 ;
see Tex. R. App. P. 26.2 (a). “A no tice of appeal which com plies with the requir ements 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). As such, we must dismiss an appeal for lack of ju risdiction when the n otice of appeal is unt i mely

. See Roberts v . State , 270 S.W.3d 662, 665 (Tex. App.

— San7 Antonio 2008, no pet.) (citing Ater v. Eighth Court of Appeals , 802 S.W.2d 241, 243 (Tex. Crim. App. 199 1 )). With resp ect to appellant ’ s appeal of a n allege d “ order ” denying his Motion for Entry of Ju dgment , no such order appears in the record before us . Because there is no appe alable order on the motion, we lack jurisdiction to con sider the appeal. See Tex. R. App. P. 25.2; Tex. Code Crim. Proc. art. 44.02; State v. Sanavongxay , 407 S.W.3 d 252, 259 (Tex. Crim . App. 2012) (notin g that “[Court’s] precedent requires that an order be in writing” when discussing State’s statutory right to appeal pretrial suppression order); see also State v. Rosenbaum , 818 S.W.2d 398 , 401

– 02 (Tex. Cr im. App. 19 91) (holdin g that for purposes of appeal , trial court “enters” order when judge signs order). Moreover, even if there were such an ord er in the record, we find no statutory authority authorizing his right to appeal it

. Blanton v. State , 369 S.W.3d 894, 9 02 (Tex. Cr im. App. 2 012) (quoting Abbott , 271 S.W.3d at 696

– 97) ; see Tex. Const. art. V, § 6(a) (providing that courts of appeals have appellate jurisdiction “under such restrictions and regulations as may be prescribed by law”); Ragston v. State , 424 S .W .3d 49, 52 (Tex. Crim . A pp. 2014) (explaining that “[j]urisdiction must be expressly given to the courts of appeals in

a statute”).
CONCLUSION For the above reasons, we conclude that we lack jurisdiction over this appeal. Accordingly, we dismiss this ap peal for wa nt of juri sdiction. See Tex. R. App. P. 43.2(f).8 _______________________ ___________________ Edward Smith , Justice Before Chi ef Justic e B yrne, Ju st ices Bake r and Smith Dismiss ed for Want of Jurisdiction on Motion for Rehearing Filed: December 2, 2021 Do Not Publish