Abron v. State, s. 51400
| Decision Date | 21 January 1976 |
| Docket Number | Nos. 51400,s. 51400 |
| Citation | 531 S.W.2d 643 |
| Parties | Johnnie Lee ABRON, Appellant, v. The STATE of Texas, Appellee. & 51401. |
| Court | Texas Court of Criminal Appeals |
Jerry Secrest, Temple, for appellant.
Joe Carroll, Dist. Atty. and Bob D. Odom, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
These are appeals from convictions for the offenses of aggravated kidnapping and aggravated robbery, with the punishment being assessed at ninety-nine (99) years in each case, respectively.
We are confronted at the outset of this case with a question of whether or not jurisdiction of this appeal will lie from the trial court's granting of an out-of-time appeal based upon an Apparent finding that appellant showed 'good cause' for filing a belated notice of appeal. See Art. 44.08(e), V.A.C.C.P.
The record reflects that appellant was indicted in Cause No. 22227 for the offense of aggravated robbery and in Cause No. 22230 for the offense of aggravated kidnapping. Appellant was convicted of the offense of aggravated kidnapping by a jury on September 18, 1974, with his punishment being assessed by the jury at ninety-nine years in the Texas Department of Corrections. On October 7, 1974, appellant entered a plea of guilty to the court for the offense of aggravated robbery, and the trial court assessed another ninety-nine-year prison term.
On October 7, 1974, appellant was formally sentenced to ninety-nine-year prison sentences, respectively, with the sentences to run concurrently. The trial court thoroughly and completely advised appellant of his right to appeal and his right to have an appeal perfected if he were indigent, and after consultation with both of appellant's attorneys, the trial court was informed that the appellant did not desire to take an appeal in either case. A waiver of appellant's right to appeal was executed in open court and approved by the trial court. 1 No appeal having been perfected, appellant was transferred to the Texas Department of Corrections shortly thereafter.
Some two and a half months later, appellant filed a pro se motion with the trial court asking for the appointment of counsel on his appeal. The trial court appointed counsel for the appellant and the attorney filed a motion for an out-of-time appeal with the trial court, and a hearing was subsequently held on this motion.
During the hearing, appellant testified and acknowledged that he had been advised of his right to appeal, and had voluntarily, knowingly and intelligently waived his right to appeal at the time of formal sentencing. Appellant further acknowledged that he had executed at least one written waiver of his right to appeal. Appellant testified that both the trial court and his attorneys had advised him of his rights to appeal and that he understood all of these rights. Appellant admitted that he was represented by two capable attorneys, both experienced in criminal law and procedure.
Notwithstanding the above admissions, appellant contended that, even though he understood his attorneys' advice, he still believed that he had a right to perfect an appeal at any time thereafter. He maintained that the reason that he did not appeal at the time of sentencing was due to the conditions in the Bell County jail. 2 While appellant admitted that he was not physically coerced by any person to waive his right to appeal, he nevertheless contended that he had a meritorious appeal and requested the trial court to grant said out-of-time appeal for 'good cause shown.'
This Court has continually held that, where a late notice of appeal is filed, 'good cause' must be shown to the trial court through affidavits or evidence submitted as to why the notice of appeal was not timely perfected. Without reasons or evidence to support the finding of good cause, an out-of-time appeal cannot be allowed, and of course the trial court's findings are reviewable by this Court. See Morrow v. State, 481 S.W.2d 144 (Tex.Cr.App.1972); Reed v. State, 481 S.W.2d 814 (Tex.Cr.App.1974); Menasco v. State, 503 S.W.2d 273 (Tex.Cr.App.1973); McDonald v. State, 501 S.W.2d 111 (Tex.Cr.App.1973); McCuin v. State, 504 S.W.2d 512 (Tex.Cr.App.1974); Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974); Farris v. State, 514 S.W.2d 946 (Tex.Cr.App.1974); Garrison v. State, 517 S.W.2d 553 (Tex.Cr.App.1975).
In the case at bar, the record is replete with evidence that the appellant voluntarily, knowingly and intelligently waived his right, both orally and in writing, to appellate review of his convictions. See Ex...
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In re Fort Worth Star-Telegram
...cause shown” has been construed in other statutes to require evidence in the record establishing good cause. See Abron v. State, 531 S.W.2d 643, 645 (Tex.Crim.App.1976) (construing former code of criminal procedure article 44.08(e)—which authorized a court of appeals to permit the filing of......
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