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Open plea of guilty - waived appeal prior to sentencing (7/11/03). Cert of app 7/11/03 says def has rt to app, but then tr ct signs new cert on 11/10/03 - def waived app. First question - which cert is valid - app ct orig dismissed for lack of jx but reinstated on mot for reh. Did I waive my right to address this issue by not responding to mot for reh?

Then def sentenced on 8/22/03, files MNT on 9/12/03 but tr ct states still has counsel needs to address court through counsel. Does this MNT extend app deadlines? Note counsel w/draws on 9/24/03 and new counsel is apptd on 9/24/03.

New counsel does not file amended MNT until 10/31/03. Even if the 9/12/03 extended the deadline isn't the amended MNT excluded from consideration because it is untimely (not 30 days from the original MNT or not even w/in the 30 days from day appt'd?

Tr ct denies MNT on 11/5/03 (w/in the deadline if the 9/12/03 extended app deadlines) NOA filed 11/7/03.

What jurisdictional arguments might I have?

Points on appeal are:
tr ct erred in excluding polygraph exam of forensice counselor during punishment hearing, and
tr ct abused discretion in denying amended MNT.

I think I have a strong argument for amended MNT not timely. I can address on merits also - aff is from a witness who was in court on the day of sentencing so her "alleged" new evidence is not only untimely but suspect since it was not until over 2 mos later that she developed her "alleged" witnessing of prior events.

Should I address jurisdictional arguments? Do I have some valid jurisdictional arguments?
Posts: 419 | Location: Abilene, TX USA | Registered: December 16, 2002Reply With QuoteReport This Post
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I'll take a shot.

On the cert. issue, I recently had a case sorta like yours. Our case was abated for the trial court to pick the cert it wanted to go with. Harrison v. State, 2004 WL 1472006 n.1 (Tex.App.-Fort Worth July 1, 2004, pet. filed).

On the amended MNT, a motion for new trial or an amended motion for new trial filed more than 30 days after judgment is a nullity and cannot form the basis for appellate review. Johnson v. State, 925 S.W.2d 745, 747 (Tex.App. -- Fort Worth 1996, pet. ref�d); Murdock v. State, 840 S.W.2d 558 (Tex.App. -- Texarkana 1992), remanded on other grounds, 845 S.W.2d 915 (Tex. Crim. App. 1993); see also Duggard v. State, 688 S.W.2d 524, 530 (Tex. Crim. App. 1985) (op. on reh�g), overruled on other grounds, 780 S.W.2d at 803 (Tex. Crim. App. 1989).

The way appellants try to get around this rule is by claiming that they were denied effective assistance of counsel. See generally Oldham v. State, 977 S.W.2d 354, 362-63 (Tex. Crim. App. 1998); Champion v. State, 82 S.W.3d 79 (Tex.App.-Amarillo 2002, pets. ref'd). You don't seem to have that claim.
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001Reply With QuoteReport This Post
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