                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
 JAMES RYAN PILARCIK,                                            No. 08-08-00121-CR
                                                 §
                        Appellant,                                    Appeal from
                                                 §
 v.                                                               195th District Court
                                                 §
 THE STATE OF TEXAS,                                            of Dallas County, Texas
                                                 §
                        Appellee.                                 (TC # F-0773290-N)
                                                 §

                                  MEMORANDUM OPINION

       James Ryan Pilarcik appeals his conviction of delivery of methamphetamine. We dismiss

the appeal for want of jurisdiction.

       On February 22, 2008, Appellant waived his right to a jury trial and entered a non-negotiated

plea of guilty. The trial court assessed punishment at a fine of $500 and imprisonment for a term

of ten years. Appellant filed notice of appeal that same day and he filed a motion for new trial on

March 4, 2008. On April 27, 2008, the trial court granted Appellant’s motion for a new trial on the

issue of punishment, but did not permit him to withdraw his plea of guilty. On June 26, 2008, the

trial court conducted a new punishment hearing and sentenced Appellant to a fine of $500 and

imprisonment for a term of ten years.

       A timely notice of appeal is necessary to invoke this Court’s jurisdiction. Olivo v. State, 918

S.W.2d 519, 522 (Tex.Crim.App. 1996). Appellant filed a timely notice of appeal following his

sentencing on February 22, 2008. However, the trial court subsequently granted Appellant’s request

for a new trial on the issue of punishment only. On June 26, 2008, the trial court conducted a new
punishment hearing and re-sentenced Appellant.1 Appellant did not file a notice of appeal following

the imposition of sentence.

         The Rules of Appellate Procedure permit a party in a criminal case to file a premature notice

of appeal where the notice of appeal is filed after a finding of guilt has been made but before

sentencing. See TEX .R.APP .P. 27.1(b)(“In a criminal case, a prematurely filed notice of appeal is

effective and deemed filed on the same day, but after, sentence is imposed or suspended in open

court, or the appealable order is signed by the trial court. But a notice of appeal is not effective if

filed before the trial court makes a finding of guilt or receives a jury verdict.”). The notice of appeal

filed on February 22, 2008 does not constitute a premature notice of appeal because it was filed after

sentence was imposed in open court. The trial court then granted Appellant’s motion for new trial

and conducted a new punishment hearing. Appellant was required to file a new notice of appeal after

the trial court re-sentenced him on June 26, 2008. That notice of appeal was due to be filed on

July 26, 2008, thirty days after the day sentence was imposed in open court. See TEX .R.APP .P.

26.2(a)(1). Because Appellant did not file notice of appeal within this time-frame, we dismiss the

appeal for want of jurisdiction.


October 2, 2008
                                                                  ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)




         1
            The judgment signed by the trial court on June 26, 2008 is erroneous in that it reflects on its first page in
the section labeled “Date Judgment Entered” the date of “2/22/2008.”
