No. 05-08-00207-CR
Opinion Filed January 7, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 1, Dallas County, Texas, Appellate Court Cause No. MC-07-R0015-D.
Before Justices WRIGHT, O'NEILL, and LANG.
Opinion By Justice LANG.
Michael Eugene Miller appeals the county criminal court of appeals' judgment dismissing his appeal to that court and affirming his convictions and fines for discharge of hazardous waste and improper discharge assessed by a jury in the Municipal Court of Record of Grand Prairie. However, we do not address the points he raises as to the merits. Rather, we address the jurisdiction of the county criminal court of appeals. On this record, we conclude the county criminal court of appeals had no jurisdiction over the appeal because there is no municipal court judgment on either charge in accordance with article 45.041(d) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 45.041(d) (Vernon Supp. 2008). We affirm the part of the judgment of the county criminal court of appeals that dismissed the appeal, but we vacate the part of the judgment that affirmed the conviction and fines.
I. FACTUAL AND PROCEDURAL BACKGROUND
The City of Grand Prairie cited Miller for discharge of hazardous waste and improper discharge. The two alleged offenses were consolidated in a single trial. On February 22, 2007, a jury found Miller guilty of both offenses, assessing fines of $1300 for discharging hazardous waste and $700 for improper discharge. The reporter's record reflects that when the jury verdict was returned, the members of the jury were thanked by the municipal court for their service and they were dismissed. The record does not reflect the verdict was read in open court. Then, the municipal court adjourned the proceeding without a judgment being described or rendered in open court. The record includes what is entitled "Judgment and Copy of Judge's Minutes" ("Judge's Minutes") for each charge against Miller. The "Judge's Minutes" are printed forms which include several blanks next to categories of information relevant to the proceedings and their disposition. Each of these documents contain, among other things, handwritten notations for the date of the trial, the fact that there were guilty verdicts, and the fines that were assessed by the jury for each offense. There is also a section on each form that is entitled "Judgment," which provides a form for the terms of a judgment, including categories of dispositions that can be checked by the court, blanks for identification of any sums payable, and a blank for the judge's signature and date. None of the blanks on the "Judgment" part of each form were completed and nowhere on the "Judge's Minutes" for each charge is there a signature of the municipal judge. Miller promptly filed a notice of appeal the day after trial, but did not file a motion for new trial until March 6, 2007. The motion stated the request for a new trial was timely filed "based upon the rulings of the Court," which Miller alleged set an appellate deadline of March 8, 2007. Miller attached to the motion what he referred to as the "ruling," a computer printout that contained a handwritten note at the bottom. The note stated: "$2110.00 due by 3-8-07 or must appeal by 3-8-07 per Judge Bull." There is no signature or date on this handwritten note identifying who wrote it or when it was written. The municipal court of record did not rule on Miller's motion for new trial and Miller pursued his appeal in the county criminal court of appeals. In that appeal, the State contended Miller failed to perfect his right to appeal because his motion for new trial was not timely filed within ten days of judgment being rendered, as required by section 30.0014(c) of the Texas Government Code. In its opinion, the county criminal court of appeals concluded Miller did not timely file his motion for new trial and the appeals were dismissed for want of jurisdiction, but, also, "affirmed" the municipal court's "judgment." II. JURISDICTION
A. Applicable Law
Jurisdiction is "fundamental and cannot be ignored," even if not raised by the parties. Solis v. State, 890 S.W.2d 518, 520 (Tex.App.-Dallas 1994, no pet.). "[A] court must take notice of that circumstance, even on its own motion." Id. (citing Wolfe v. State, 878 S.W.2d 645, 646 (Tex.App.-Dallas 1994, no pet.)). If an appellate court is without jurisdiction over an appeal, it can only dismiss the appeal. See Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.-Dallas 1999, no pet.); Solis, 890 S.W.2d at 520 (citing Wolfe, 878 S.W.2d at 646). The proceedings in municipal courts of record are governed by the Texas Code of Criminal Procedure and the Texas Rules of Appellate Procedure. Tex. Gov't Code Ann. § 30.00023(a) (Vernon 2004). The judgment for a criminal action before a municipal court judge "shall be that the defendant pay the amount of the fine and costs to the state." Tex. Code Crim. Proc. Ann. art. 45.041(a). All judgments of a municipal court judge "shall be rendered in open court." Id. art. 45.041(d). "[C]ounty courts have appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction." Tex. Code Crim. Proc. Ann. art. 4.08 (Vernon 2005). Thus, appeals from municipal courts are "heard" by the county court. Tex. Code Crim. Proc. Ann. art. 45.042(a) (Vernon 2006). A county court has jurisdiction of an appeal from a municipal court where there is a judgment. See id. art. 45.042. Subsequent to an appeal to the county court, an appellant may appeal the county court's judgment "to the court of appeals if the fine assessed against the defendant exceeds $100 and if the [municipal court] judgment is affirmed by the [county] court." Tex. Gov't Code Ann. § 30.00027(a); see Jamshedji v. State, 230 S.W.3d 224, 225 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd); State v. Morse, 903 S.W.2d 100, 105 n. 2 (Tex.App.-El Paso 1995, no pet.); see also Tex. Code Crim. Proc. Ann. art. 4.03 (Courts of Appeals have appellate jurisdiction of county criminal court judgments of cases appealed from "inferior" courts to county criminal court if fine imposed exceeds $100 or "sole issue is the constitutionality of the statute or ordinance on which the conviction is based."). B. Application of Law to Facts
The "opinion" of the county criminal court of appeals stated, in part, that it affirmed what was referred to as the "judgment" of the municipal court of record of Grand Prairie. The opinion stated the fines assessed against Miller exceed $100. Accordingly, we have jurisdiction over Miller's appeal from the county criminal court of appeals' judgment in this case. See id. art 4.03. The county criminal court of appeals has appellate jurisdiction over appeals from judgments of municipal courts. See id. art. 45.042. However, the record does not reflect a municipal court judgment in compliance with the applicable statute for either charge, "that the defendant pay the amount of the fine and costs of the State," or that a judgment was "rendered in open court." See id. art. 45.041(a), (d). In its opinion, the county criminal court of appeals first dismissed the appeal for want of jurisdiction because of the late filing of a motion for new trial in each case, but then it affirmed the municipal court "judgment." Once the court dismissed the appeal for want of jurisdiction, it had no jurisdiction to affirm any judgment. Further, because there is no judgment of the municipal court in the case, the county criminal court of appeals did not acquire jurisdiction over Miller's appeal, and could not affirm the municipal court "judgment." Accordingly, it is appropriate to vacate that portion of the county criminal court of appeals' judgment that affirmed the judgment of the municipal court. See State v. Guevara, 172 S.W.3d 646, 647 (Tex.App.-San Antonio 2005, no pet.) (vacating judgment where county court did not acquire jurisdiction over appellant's appeal). The county criminal court of appeals dismissed the appeal for want of jurisdiction after it determined Miller's motion for new trial was not timely filed. However, the timeliness of the motion for new trial is not dispositive. Rather, as stated above, there was no judgment in the county criminal court of appeals because of the absence of a judgment in the municipal court. We affirm the portion of the county criminal court of appeals' judgment dismissing the appeal for want of jurisdiction. III. CONCLUSION
The part of the judgment of the county criminal court of appeals that dismissed the appeal is affirmed, but the part of the judgment that affirmed the conviction and fines is vacated.