

NO. 07-10-0391-CR
                                                      NO. 07-10-0392-CR
                                                      NO. 07-10-0393-CR
                                                      NO. 07-10-0394-CR
 
                                                   IN
THE COURT OF APPEALS
 
                                       FOR
THE SEVENTH DISTRICT OF TEXAS
 
                                                                 AT
AMARILLO
 
                                                                      PANEL
B
 
                                                             OCTOBER 6, 2010
                                            ______________________________
 
                                                          RICARDO
CAVAZOS,
 
Appellant
 
                                                                             v.
 
                                                        THE STATE OF TEXAS, 
 
Appellee
                                         _________________________________
 
                       FROM THE 251ST DISTRICT COURT OF POTTER
COUNTY;
 
NOS. 51,006-C; 51,007-C, 51,008-C,
51,009-C; 
 
HON. PATRICK A. PIRTLE, PRESIDING
_______________________________
 
Memorandum Opinion  
_______________________________
 
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Ricardo
Cavazos (appellant) filed a document called a “motion for out of time appeal.”  In it, he informs us of his intent to appeal
his conviction in various causes of action. 
However, he also acknowledges that the period in which to perfect a
timely appeal lapsed long ago.  Thus, we
treat his “motion” as a notice of appeal and dismiss the appeals for want of
jurisdiction.  
According to the information before us, the trial court
sentenced appellant on March 8, 2006.  At
that point, he allegedly told the court that he wanted to appeal.  However, no notice of appeal was filed within
the time necessary to effectively effectuate his desire.  Instead, we received the aforementioned
“motion” on September 15, 2010.  
It is beyond dispute that a timely notice of appeal is necessary to invoke our jurisdiction.
State v. Riewe, 13 S.W.3d 408, 410
(Tex. Crim. App. 2000); Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996). 
To be timely, the notice must be filed within thirty days after sentence
was pronounced in open court, unless a timely motion for new trial was
filed.  Tex.
R. App. P. 26.2.  Irrespective of
whether a motion for new trial actually was filed and denied here, a notice
tendered more than four years after the trial court sentenced appellant in open
court is untimely.  So, we have no
jurisdiction over the matter.  State v. Riewe, supra.
Accordingly,
the appeal is dismissed for want of jurisdiction.  However, an appellant may petition the Texas
Court of Criminal Appeals under article 11.07 of the Code of Criminal Procedure
for leave to initiate a belated appeal, as the petitioner apparently did in Ex parte Garcia, 988 S.W.2d 240 (Tex.
Crim. App. 1999).
 
                                                                        Brian
Quinn
                                                                        Chief
Justice
 
 
Do not publish.


vidence depicted a white powdery substance found on the floor of appellant’s
apartment, which an officer at the scene believed was cocaine.  
          Assuming, but without deciding, admission of the investigating officer’s testimony
of the field test result was error, we find the error harmless as it did not effect a substantial
right of appellant.  See Tex. R. App. P. 44.2(b).  Error effects a substantial right if it had a
substantial and injurious effect or influence in determining the jury’s verdict.  King v. State,
953 S.W.2d 266, 271 (Tex.Crim.App. 1997).  Because evidence of cocaine in appellant’s
apartment following the Shivers incident was admitted elsewhere in the sentencing phase
without objection, any error in allowing the testimony of the investigating officer as to the
field test results was harmless.  See East v. State, 702 S.W.2d 606, 611 (Tex.Crim.App.
1985) (admission of inadmissible evidence over a valid objection cannot amount to
reversible error when the same facts are admitted elsewhere without objection).  
          Additionally, during the sentencing phase of trial the State’s evidence of cocaine in
appellant’s apartment following the Shivers incident was but a portion of its case for a
longer sentence.  Through the State’s other evidence, the jury learned of several
adjudicated offenses and unadjudicated wrongful acts of appellant including two assaults,
burglary, kidnapping, unlawful discharge of a firearm, marijuana possession, theft of
copywritten music, failure to pay taxes, possession with intent to deliver cocaine, and bail
jumping.  Because the error, if any, in admitting the opinion of the investigating officer was
harmless, we overrule appellant’s fourth issue.
Conclusion
          Having overruled appellant’s four issues we affirm the judgment of the trial court.
 
 
 
James T. Campbell
Justice

Do not publish.
