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627 S.W.2d 474

Mayfield v. State

Texas Court of Appeals, 13th District

Decided December 17, 1981

Texas Court of Appeals, 13th District · decided 1981-12-17

Key passage — most relied on by later courts

“[n]o notice of appeal ... shall be held ineffective because prematurely filed; and every such ... notice of appeal ... shall be deemed to have been filed on the date of but subsequent to ... the date of the overruling of motion for new trial, if such motion is filed.”

quoted by 6 later decisions, including Penhaker v. State, Panelli v. State

““Sec. 14. In order to perfect an appeal, a written motion for a new trial must be filed by the defendant no later than the 10th day after rendition of the judgment of conviction, and may be amended by leave of court at any time before it is acted on within 20 days after the filing of the original or amended motion. For good cause shown the time for filing or amending may be extended by the court, not to exceed 90 days. An original or amended motion shall be deemed overruled by operation of law at the expiration of the 20 days allowed for determination of the motion if it is not acted on by the court within that time. The motion shall set forth the points of error complained of by the defendant. “Sec. 15. In order to perfect an appeal, the defendant shall give timely notice of appeal. In the event the defendant requests a hearing on his motion for a new trial, the notice of appeal may be given orally in open court upon the overruling of the motion for new trial; otherwise, the notice of appeal shall be in writing and filed with the municipal court no later than the 10th day after the motion for new trial is overruled. For good cause shown the time for giving notice of appeal may be extended by the court, not to exceed 90 days.” 1”

quoted by 1 later decision, including Favela v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1981-12-17

How this case has been cited

Cited by 13 later decisions — most recently September 2018

13 state decisions

1101981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

PER CURIAM.

¶2 Appellant is before the Court on a motion for leave to file a late notice of appeal under Tex.Code Crim.Pro.Ann., art. 44.-08(e), 1981 Tex.Sess.Law Serv. Ch. 291, § 127 (Vernon).

¶3 According to the motion, appellant was sentenced on September 23, 1981. On the same day he gave oral notice of appeal. On October 5, 1981, the 12th day after sentencing, appellant filed a motion for new trial. That motion was overruled on October 16, 1981. On November 13, 1981, 28 days after the motion for new trial was overruled, appellant filed a written notice of appeal in the trial court. This second notice of appeal was late. There being no good cause shown for its being late it is ineffective to perfect the appeal.

¶4 Where there has been a prematurely filed notice of appeal in civil cases, Rule 306c, T.R.C.P. provides:

“No . .. notice of appeal . . . shall be held ineffective because prematurely filed; and every such . . . notice of appeal ... shall be deemed to have been filed on the date of but subsequent to . . . the date of the overruling of motion for new trial if such motion is filed.”

¶5 The purpose of this rule is such that a party who appeals will not be denied his appeal because of the technical reason that he filed his notice prematurely.

¶6 Rule 211, Tex.Crim.App.Rules (1981) provides that:

“Where not inconsistent with the Code of Criminal Procedure and these rules, as they now exist or may hereafter exist, the Rules of Civil Procedure shall govern proceedings in the courts of appeals in criminal cases.”

¶7 The purpose of this rule as we see it is to make as many Rules of Civil Procedure consistent with the Rules of Criminal Procedure so that the attorneys who practice both civil and criminal law will be guided as nearly as possible by the same rules.

¶8 Tex.Code Crim.Pro.Ann. art. 44.08(b), 1981 Tex.Sess.Law Serv. Ch. 291, § 127 (Vernon), provides that when a motion for new trial is filed, notice of appeal shall be given within fifteen days after the overruling of that motion. We find neither this article nor any other provision of the Code of Criminal Procedure or the Texas Criminal Appellate Rules to be inconsistent with Rule 306c, T.R.C.P. We therefore hold that when an appellant gives notice of appeal prematurely the same shall be deemed to have been filed on the date of, but subsequent to the date of the overruling of the motion for new trial, if such a motion is filed. This is consistent with the Rules of Civil Procedure and will permit an appellant who fully intended to appeal the right to appeal without being held accountable to a “technicality.” Although the appellant failed to state good cause under the Tex. Code Crim.Pro.Ann., art. 44.08(e), he, nevertheless, has given effective notice of appeal in his prematurely given notice.

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