Williams v. State, No. 06-03-00247-CR (Tex. App. 11/19/2003)

• Decision Date: 19 November 2003
• Docket Number: No. 06-03-00247-CR,06-03-00247-CR
• Parties: WOODROW WILSON WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

WOODROW WILSON WILLIAMS, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 06-03-00247-CR

Court of Appeals of Texas, Sixth District at Texarkana.

Submitted November 18, 2003.

Decided November 19, 2003.

On Appeal from the 102nd Judicial District Court, Bowie County, Texas, Trial Court No. D-102-CR-93-605.

Before MORRISS, C.J., ROSS and CARTER, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice CARTER.

Woodrow Wilson Williams has filed a notice of appeal from an order of the 102nd Judicial District Court of Bowie County, Texas. Williams had asked the trial court to order the preparation of a court reporter's record from his trial, which took place in February 1994. No appeal was filed. However, since his conviction became final, Williams has made two separate attempts to obtain an out-of-time appeal, which were treated as petitions for post-conviction writs of habeas corpus. The Texas Court of Criminal Appeals denied both petitions without written order, denying the second motion as a subsequent petition on August 20, 1999.¹

Since that time, Williams filed a request in 2001 for a free record, which the trial court denied on January 9, 2002. Williams promptly filed yet another request, which was denied on May 10, 2002. Williams then filed a "Motion to Produce [sic] Costs," which the trial court denied on May 19, 2003. Williams filed a notice of appeal from that order on October 13, 2003.

Assuming this is an appealable order, the trial court ruled on the order on May 19. A notice of appeal must be filed within thirty days after the day the trial court enters an appealable order. Tex. R. App. P. 26.2(a)(1). This notice of appeal was filed on October 13 and was thus not timely. In such a situation, our jurisdiction has not been invoked, and we must dismiss the appeal for want of jurisdiction.

We point out that, in criminal cases, the right to appeal is conferred by the Legislature. See Rushing v. State, 85 S.W.3d 283, 286 (Tex. Crim. App. 2002). A party may appeal only that which the Legislature has authorized. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997); Galitz v. State, 617 S.W.2d 949, 951 (Tex. Crim. App. 1981). Appellate jurisdiction is invoked by giving timely and proper notice of appeal. State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000), overruled on other grounds, Bayless v. State, 91 S.W.3d 801 (Tex. Crim. App. 2002). Even though an indigent criminal defendant has a constitutional right to a free appellate record in a first appeal of right, see Griffin v. Illinois, 351 U.S. 12, 18-19 (1956); Abdnor v. State, 712 S.W.2d 136, 139 (Tex. Crim. App. 1986), certain procedures must be timely exercised in order to obtain that record. Texas Rule of Appellate Procedure 20.2 provides the procedures an indigent appellant must follow to obtain the record. See Tex. R. App. P. 20.2.²

Under those procedures, within the time for perfecting the appeal, an appellant who is unable to pay for the appellate record may, by motion and affidavit, ask the trial court to have the appellate record furnished without charge. If after hearing the motion, the trial court finds the appellant cannot pay or give security for the appellate record, the court must order the reporter to transcribe the proceedings without charge to the appellant. Tex. R. App. P. 20.2; Scott v. State, 80 S.W.3d 184, 190 (Tex....