                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-10-024-CR


DARREN SW AIN                                                        APPELLANT

                                            V.

THE STATE OF TEXAS                                                         STATE

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     FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      In July 2008, a jury convicted Appellant Darren Swain in a municipal court of

record of itinerant vending without a license, and the trial court assessed a fine

against him in the amount of $550. After the trial court denied Swain’s motion for

new trial, he appealed to the county criminal court. See Tex. Gov’t Code Ann.

§ 30.00014(a) (Vernon Supp. 2009). On November 3, 2009, the county criminal

court delivered a written opinion affirming the municipal court’s judgment. See id.



      1
           See Tex. R. App. P. 47.4.
§ 30.00024(a)(1), (c). On November 19, 2009, Swain filed a “Motion for Rehearing

or, in the Alternative, Motion for New Trial.” 2 On January 20, 2010, seventy-eight

days after the county criminal court had affirmed the municipal court’s judgment,

Swain filed his notice of appeal from the county criminal court’s judgment. See id.

§ 30.00027(a) (Vernon 2004).

      The State filed a motion to dismiss Swain’s appeal. 3 It argues that Swain

failed to timely perfect this appeal because (1) under rule of appellate procedure

26.2(a)(1), he did not file his notice of appeal within thirty days of the county criminal

court’s judgment affirming the municipal court’s judgment and (2) even though Swain

filed a motion for new trial after the county criminal court had affirmed the municipal

court’s judgment, rule 26.2(a)(2)’s ninety-day deadline for filing a notice of appeal

when a motion for new trial is filed does not apply in this case because Swain was

convicted after a jury trial in a municipal court of record and thereafter appealed to

the county criminal court, which did not conduct a trial de novo. According to the

State, rule 26.2(a)(2) does “not apply to an appeal from a municipal court of record

to a county court, and then to a court of appeals.” Therefore, “[t]here is no reason

for [Swain] to file a motion for new trial at the county level since the trial was held in

the municipal court.” W e agree with the State.



      2
         The record does not demonstrate that the county criminal court ever ruled
on this motion.
      3
           Swain filed a response to the State’s motion to dismiss.

                                            2
      A person convicted of an offense in a municipal court of record may appeal

that conviction to a county criminal court. Id. § 30.00014(a). The county criminal

court may not retry the case; instead, it must determine the appeal on the basis of

the errors shown in the municipal court record. Id. § 30.00014(b) (“An appeal from

the municipal court of record may not be by trial de novo.”) (emphasis added). The

county criminal court may affirm, reverse, or reform the municipal court’s judgment.

Id. § 30.00024(a); Alexander v. State, 240 S.W .3d 72, 74 (Tex. App.—Austin 2007,

no pet.). The defendant may then appeal to the court of appeals if the county

criminal court affirms the municipal court’s judgment and if the fine assessed against

the defendant exceeds $100. Tex. Gov’t Code Ann. § 30.00027(a).

      Under rule of appellate procedure 26.2(a)(1), a defendant’s notice of appeal

must be filed within thirty days after the court enters an appealable order. Tex. R.

App. P. 26.2(a)(1); see Garza v. State, Nos. 14-06-00595-CR, 14-06-00596-CR,

2006 W L 2075147, at *1 (Tex. App.—Houston [14th Dist.] July 27, 2006, no pet.)

(mem. op., not designated for publication); Croes v. State, No. 14-06-00361-CR,

2006 W L 1458485, at *1 (Tex. App.—Houston [14th Dist.] May 25, 2006, no pet.)

(mem. op., not designated for publication); Sharp v. State, No. 05-04-00022-CR,

2004 W L 60770, at *1 (Tex. App.—Dallas Jan. 14, 2004, no pet.) (not designated for

publication); see also Tex. Gov’t Code Ann. § 30.00023(b) (Vernon 2004) (“The

appellate courts may make and enforce all rules of practice and procedure that are

not inconsistent with law and that are necessary to expedite the dispatch of appeals


                                          3
from the municipal courts of record.”). Rule 26.2(a)(2) provides that a notice of

appeal must be filed “within 90 days after the day sentence is imposed or suspended

in open court if the defendant timely files a motion for new trial.” Tex. R. App. P.

26.2(a)(2). A notice of appeal that 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). W ithout a timely filed notice of appeal, we lack

jurisdiction over the appeal. Id.

      Here, Swain filed his notice of appeal seventy-eight days after the county

criminal court had affirmed the municipal court’s judgment. Because Swain did not

file the notice of appeal within thirty days of the county criminal court’s judgment, we

lack jurisdiction over this appeal unless rule 26.2(a)(2) applies to extend the deadline

for filing the notice of appeal. See id.

      It is well established that the granting or denying of a motion for new trial lies

within the discretion of the trial court. Lewis v. State, 911 S.W .2d 1, 7 (Tex. Crim.

App. 1995). “A plain reading of [rule of appellate procedure 26.2(a)] reveals that a

timely-filed motion for new trial can only extend the deadline for filing an appeal from

the imposition or suspension of a sentence; it cannot extend the deadline for filing

an appeal from a mere ‘appealable order.’” Martin v. State, No. 02-06-00272-CR,

2007 W L 529905, at *1 (Tex. App.—Fort W orth Feb. 22, 2007, no pet.) (mem. op.,

not designated for publication); see Tex. R. App. P. 26.2(a).




                                           4
      In this case, the municipal court of record conducted Swain’s jury trial and

imposed the $550 fine. The county criminal court did not impose or suspend

Swain’s sentence. Swain’s appeal to the county criminal court was not a trial

de novo; instead, the county criminal court exercised criminal appellate jurisdiction

under government code section 30.00014(a).           See Tex. Gov’t Code Ann.

§ 30.00002(1)(A) (Vernon 2004) (defining “[a]ppellate court” to mean, among other

things, the county criminal court), § 30.00014(a) (providing that the county criminal

courts have jurisdiction over appeals from a municipal court of record),

§ 30.00014(b) (providing that “[a]n appeal from the municipal court of record may not

be by trial de novo”) (emphasis added). Accordingly, Swain’s motion for new trial

challenging the county criminal court’s judgment that affirmed the municipal court’s

judgment did not operate to extend the deadline for filing the notice of appeal under

rule 26.2(a)(2).

      Swain’s notice of appeal was untimely. Accordingly, we grant the State’s

motion to dismiss and dismiss the appeal for want of jurisdiction. See Tex. R. App.

P. 42.3(a), 43.2(f).


                                             PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

PUBLISH

DELIVERED: July 8, 2010



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