Castillo v. State

• Decision Date: 24 October 1984
• Docket Number: No. 014-84,014-84
• Citation: Castillo v. State, 689 S.W.2d 443 (Tex. Crim. App. 1984)
• Parties: Robert Joe CASTILLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 443

689 S.W.2d 443

Robert Joe CASTILLO, Appellant, v. The STATE of Texas, Appellee.

No. 014-84.

Court of Criminal Appeals of Texas En Banc.

Oct. 24, 1984.

On Rehearing April 3, 1985.

David R. Weiner (court appointed), San Antonio, for appellant.

Bill M. White, Former Dist. Atty., and Sam D. Millsap, Jr., Dist. Atty., Charles Estee, Richard H. Fox, Monica Donahue and Miguel Martinez, Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of arson. The Court of Appeals reversed the conviction upon finding the trial court erroneously overruled appellant's motion to quash. Castillo v. State (Court of Appeals-San Antonio). The State brought petition for review by this Court on two issues: (1) whether the Court of Appeals correctly decided the ground of error, and (2) whether the Court of Appeals had jurisdiction of the case. Review was granted on both issues.

We first address the jurisdictional issue. The State argues the Court of Appeals lacked jurisdiction because the notice of appeal was late. The record reflects that appellant was sentenced on August 20, 1981. At that time Art. 44.08, V.A.C.C.P., required notice of appeal be given within 10 days of sentencing. The record reflects that appellant was so informed in open court at the time of sentencing and that he informed the court, through counsel, that he did not want to appeal. The record before this Court does not reflect that notice of appeal was ever given. The State's brief recites that the record reflects oral notice of appeal was given on September 4, 1981, but the record does not contain the page referred to by the State. Appellant apparently agrees that notice of appeal was late, because he argues the Court of Appeals impliedly found good cause for late notice of appeal.

We will address appellant's argument of good cause in a moment, but we first find there was no timely notice of appeal, first because the record reflects no notice of appeal whatsoever, and alternatively, assuming arguendo that notice of appeal was given on September 4, such notice of appeal would have been 15 days after sentencing, five days after expiration of the time allowed for notice of appeal in effect at the time of sentencing and at the time of expiration of the permitted period for giving notice of appeal.

Appellant argues the Court of Appeals found good cause for late notice of appeal under Art. 44.08(e), V.A.C.C.P. That provision, however, became effective September 1, 1981, which was after the time for giving notice of appeal in this case had expired. Specifically, Art. 44.08(e), provides:

"For good cause shown, the court of appeals may permit the giving of notice of appeal after the expiration of such 15 days."

This amendment was part of the act giving criminal appellate jurisdiction to the courts of appeals. Acts 1981, 67th Leg., ch. 291. Also, as part of that amendment, the time for giving notice of appeal was extended to 15 days, measured from sentencing or overruling of motion for new trial. Art. 44.08(b) and (c), supra. The amendment did not revive a right to appeal that had already expired. To hold otherwise would mean the courts of appeals would have the authority at this date to find good cause for late notice of appeal in any final conviction no matter how long ago the conviction became final. We do not believe the legislature intended such a result. We hold the authority granted by Art. 44.08(e), supra, may be exercised only in those cases in which "the expiration of such 15 days," as referred to in the statute, was an event occurring on or after the effective date of the act, i.e., September 1, 1981. See Barnes v. State, 644 S.W.2d 1 (Tex.Cr.App.1982); McCarty v. State, 557 S.W.2d 295 (Tex.Cr.App.1977); Ex parte Young, 517 S.W.2d 288 (Tex.Cr.App.1974). Accordingly, the Court of Appeals was without authority to act under Art. 44.08(e) in this case and we will not presume that it did so. Appellant's argument is without merit.

Timely notice of appeal is jurisdictional. E.g., Pittman v. State, 546 S.W.2d 623 (Tex.Cr.App.1977); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Newton v. State, 482 S.W.2d 215 (Tex.Cr.App.1972). The record does not reflect timely notice of appeal. The appeal therefore must be dismissed.

The judgment of the Court of Appeals is reversed and the cause remanded with directions to dismiss the appeal.

OPINION ON REHEARING

ONION, Presiding Judge.

Appellant's plea of guilty before the court to the second count of the indictment charging arson resulted in conviction. Punishment, in light of allegation and proof of a prior felony conviction and a plea bargain, was assessed by the court at 20 years' imprisonment.

On appeal the appellant urged the "trial court erred in overruling appellant's motion to quash the indictment on the failure to allege the manner and means by which the offense was committed." The San Antonio Court of Appeals concluded it had jurisdiction of the appeal of the ruling on the pre-trial motion to quash under the 1977 amendment to Article 44.02, V.A.C.C.P. A panel of the court reversed the conviction, finding the trial court erred in overruling the motion to quash as the indictment failed to give adequate notice of charges against the appellant by not stating the manner in which the alleged fire had been set. The panel wrote:

"We also note that the term 'starting a fire' is nowhere defined in the Texas Penal Code. The omission from the indictment in the instant case of the facts by which the prosecution would establish arson renders the instrument subject to a timely motion to quash. We therefore reverse the trial court and order the prosecution dismissed."

The court en banc entertained State's motion for rehearing and overruled the same without written opinion. Associate Justice Cantu dissented with written opinion, arguing the manner and means by which the fire started was essentially evidentiary in nature and need not be pleaded in the indictment. Chief Justice Cadena and Justice Dial joined in the dissent. See Castillo v. State (Tex.App. [4th Dist.] 1983, No. 4-81-00261-CR).

We granted the State's petition for discretionary review to determine (1) whether the Court of Appeals correctly decided appellant's sole ground of error and (2) whether the Court of Appeals had jurisdiction by virtue of a notice of appeal.

On original submission this Court found timely notice of appeal had not been given, that such timely notice was jurisdictional and the appeal had to be dismissed. The judgment of the Court of Appeals was reversed.

On the Court's own motion for rehearing we have concluded, although not without difficulty, that belated notice of appeal for good cause was implicitly approved by the Court of Appeals. See Article 44.08(e), V.A.C.C.P. ¹ We now consider that court's holding the trial court erred in overruling the motion to quash the indictment.

Appellant was charged under V.T.C.A., Penal Code, § 28.02, as amended in 1979 (Acts 1979, 66th Leg., p. 1216, ch. 588, § 2, eff. Sept. 1, 1979).

Said § 28.02 reads in pertinent part:

"(a) A person commits an offense if he starts a fire or causes an explosion with intent to destroy or damage any building, habitation, or vehicle:

"(1) knowing that it is within the limits of an incorporated city or town;

"(2) * * *

"(3) * * *

"(4) knowing that it is located on property belonging to another;

"(5) * * *

"(6) * * *

"(b) It is a defense to prosecution under Subsection (a)(1) of this section that prior to starting the fire or causing the explosion, the actor obtained a permit or other written authorization granted in accordance with a city ordinance, if any, regulating fires and explosions."

Omitting the formal parts, the indictment alleged in the first count that

"on or about the 3rd day of January, A.D., 1981, Robert Joe Castillo did then and there knowingly start a fire with intent to destroy or damage a habitation knowing that it was located on property belonging to another, namely: Alicia Mae Rodriquez; ...."

The second count alleged in part:

"that on or about the 3rd day of January ... Robert Joe Castillo did then and there knowingly start a fire with intent to destroy or damage a habitation knowing that it was within the City of San Antonio, Bexar County, Texas; ...."

The third paragraph (not a count) alleged a prior 1973 murder conviction for enhancement of punishment.

Appellant filed a pre-trial motion to quash the indictment alleging, inter alia,

"IV

"Because the same fails to set out or inform the Defendant how, in what manner and means and ways the alleged offense was committed in sufficient detail in order that he may prepare a defense or defend himself or enter a plea and hence, the same violates the due process provisions of the United States and Texas Constitution and Bill of Rights, the Texas Penal Code and Code of Criminal Procedure.

" * * *

"VII

"Because the same fails to show or allege how the allege (sic) offense was committed and hence, deprives the defendant of proper notice."

The motion did not further elaborate on its contentions.

Over two months later the court entertained all pre-trial motions. The motion to quash was summarily overruled. The appellant offered no argument nor cited any authorities.

Thereafter a plea bargain was entered into by the parties. The State abandoned the first count of the indictment, and the appellant entered a guilty plea to the second count and a plea of "true" to the third paragraph alleging a prior felony conviction for enhancement of punishment.

During the admonishment the court inquired:

"Mr. Adams (Defense Counsel), are you satisfied that Mr. Castillo has a factual as well as a rational understanding of the charges against him?

"MR. ADAMS: Yes, Your Honor."

On appeal different counsel for the...