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 original opinion in this case March 31, 2021 in which we 

concluded that we lacked jurisdiction over appellant’s appeal of his sentence and a purported 

“Order denying the Appellant’s Motion for Entry of Judgment.”1 See McBride v. State, 

No. 03-21-00057-CR, 2021 WL 1202092, at *1 (Tex. App.—Austin Mar. 31, 2021, pet. ref’d) 

(mem. op., not designated for publication). Appellant has now filed a motion for rehearing. See 

Tex. R. App. P. 49.1. We overrule appellant’s motion for rehearing, withdraw our previous 

opinion, vacate our previous judgment, and issue this substitute opinion and a new judgment.

Twenty-five years ago, a jury found appellant guilty of aggravated sexual assault 

and assessed punishment, enhanced by two previous felony convictions, at ninety-nine years. In 

1 The record before us contains no written, signed order denying appellant’s Motion for 

Entry of Judgment, filed on February 2, 2021.
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two issues, appellant contends that we erred by finding that we lacked jurisdiction because the 

record “unequivocally shows that there is an outstanding Judgment of Conviction imposing 

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.—Austin Mar. 20, 1997, pet. ref’d) (per curiam) (not designated for 

publication). He was convicted on each of the indictments following a consolidated trial, but this 

Court reversed his convictions after we determined that a blood sample drawn from appellant

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 then twice reindicted on 

aggravated 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 imminent infliction of death, serious 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 sentenced appellant to ninety-nine years’ 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 CR94-311, -312, -313, and -314 in exchange 

for a recommended sentence of thirty years’ confinement. After receiving the pre-sentencing 

investigation, the trial court rejected the plea agreements at a sentencing hearing on 
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April 11, 1995. The trial judge informed appellant that he was rejecting the agreements and 

asked him whether he wished to withdraw his pleas. Appellant declined, and the trial judge

found him “guilty as charged of all cases,” stated that “the sentences will be 60 years in each 

case,” and remanded him to the sheriff’s custody. Nevertheless, the trial judge 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 delay, appellant’s attorney returned to the courtroom

and indicated on the record that appellant “wishe[d] to proceed to trial.” The trial court stated 

that appellant “will be allowed to withdraw his plea[s] and his cases will be reset for trial”; on 

the docket sheet for cause number CR94-311, the trial judge noted that appellant had withdrawn 

his plea and the 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 subsequently dismissed 

upon motion of the State. Id., 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, appealing “from the Sentence that 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 recommendation 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 record.
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DISCUSSION

Appellant filed the present notice of appeal under cause number CR94-311, in 

which his guilty plea was withdrawn and the indictment dismissed; he appeals from the sentence 

“pronounced and imposed” on April 11, 1995, the date of the plea proceeding. Nevertheless, we

understand the claims made in appellant’s brief and motion for rehearing to amount to an 

allegation of a double jeopardy violation and challenge to his subsequent reindictment, trial, and 

ninety-nine-year sentence in cause number CR95-129. Appellant appears to allege that any 

finding that he withdrew his guilty plea is unsupported by the record and suggests that cause 

number CR94-311 was dismissed only after jeopardy had attached. In support of his contention, 

appellant notes that during the plea proceeding, the trial court found him guilty and stated that 

“the sentences will be 60 years in each case.”

The Court of Criminal Appeals (“CCA”) has held that an appellant’s failure to 

comply with the technical requirements of notices of appeal, including providing the correct

cause number, 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, 190 (Tex. Crim. App. 2007). In Few, as here, 

the appellant was re-indicted 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 original cause number on his notice of appeal, the CCA held that the court 

of appeals retained jurisdiction because it was “apparent from the record” that all parties knew 

that Few expressed his desire to appeal his conviction. Id. at 185, 190.

In explaining the rationale for its holding, the CCA emphasized the amendment of 

the Rules of Appellate Procedure in 2002 “to prevent trivial, repairable mistakes or defects from 
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divesting appellate courts of the jurisdiction to consider the merits of both State and defense 

appeals in criminal 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 requirements not absolutely necessary 

to effect the purpose of a rule.” 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 not depend upon tracking through 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 days or ninety days after 

sentencing, 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 conclude that we lack 

jurisdiction as a result of appellant’s erroneously filing his appeal under cause number 

CR94-311.

Although appellant’s mistakenly filing his notice of appeal under the wrong cause 

number does not deprive us of jurisdiction, appellant has already filed a notice of appeal under 

cause number CR95-129. See McBride, 1997 WL 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, 2020, pet. ref’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 jurisdiction because appellant was not entitled to more than one appeal from 

conviction); Coleman 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). Because 
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appellant directly appealed his conviction in cause number CR95-129 approximately twenty-five 

years ago, we lack jurisdiction to consider this appeal.

To the extent that appellant insists he was not mistaken in filing his notice of 

appeal under cause number CR94-311, we reiterate that there is no judgment imposing sentence 

from which to appeal. Abbott v. State, 271 S.W.3d 694, 697 n.8 (Tex. Crim. App. 2008) (noting 

Court’s prior recognition of “long-established rule that a defendant’s general right to 

appeal under Article 44.02 ‘has always been limited to appeal’ from a ‘final judgment.’”);

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 appeal, appellate court 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 publication) (dismissing

appeal for lack of jurisdiction where record contained no judgment of conviction and thus

nothing was presented for review).

Moreover, the untimeliness of the appeal likewise deprives us of jurisdiction. As 

noted above, a notice of appeal challenging a conviction or order must be filed within thirty or 

ninety days 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 notice of appeal which complies with the requirements 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 jurisdiction when 

the notice of appeal is untimely. See Roberts v. State, 270 S.W.3d 662, 665 (Tex. App.—San 
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Antonio 2008, no pet.) (citing Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. 

App. 1991)).

With respect to appellant’s appeal of an alleged “order” denying his Motion for 

Entry of Judgment, no such order appears in the record before us. Because there is no appealable 

order on the motion, we lack jurisdiction to consider the appeal. See Tex. R. App. P. 25.2; Tex. 

Code Crim. Proc. art. 44.02; State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012)

(noting 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. Crim. App. 1991) (holding that for purposes of appeal, trial court “enters” order 

when judge signs order). Moreover, even if there were such an order in the record, we find no

statutory authority authorizing his right to appeal it. Blanton v. State, 369 S.W.3d 894, 902 (Tex. 

Crim. App. 2012) (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. App. 

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 appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
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__________________________________________

Edward Smith, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Dismissed for Want of Jurisdiction on Motion for Rehearing

Filed: December 2, 2021

Do Not Publish