Albert Wendell Sells v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 1, 2023
• Docket: 09-22-00408-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00408-CR __________________

ALBERT WENDELL SELLS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 19-33290 __________________________________________________________________

MEMORANDUM OPINION

On December 9, 2022, we notified the parties that the notice of appeal had

been filed outside the time for which an extension of time may be granted for filing

a notice of appeal. The appellant, Albert Wendell Sells, filed a Motion to Correct the

Record. Sells argues his motion for new trial was overruled by operation of law on

December 1, 2022. We deny the Motion to Correct the Record and dismiss the

appeal.

1 The trial court sentenced Sells on August 4, 2022. Sells timely filed a motion

for new trial on September 2, 2022. See Tex. R. App. P. 21.4(a). A trial court must

rule on a motion for new trial within 75 days after imposing or suspending sentence.

See Tex. R. App. P. 21.8(a). A motion for new trial is deemed denied when the period

prescribed in Rule 21.8(a) expires. See Tex. R. App. P. 21.8(c). Sells’s motion for

new trial was overruled by operation of law well before December 1, 2022.

When a defendant appeals from a conviction in a criminal case, the time to

file a notice of appeal runs from the date sentence is imposed or suspended in open

court. See Tex. R. App. P. 26.2(a). The 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.” Id. Sells filed a notice of appeal on November

30, 2022, more than 90 days after the date the trial court imposed the sentence.

An appellate court may extend the time to file the notice of appeal if, within

15 days after the deadline for filing the notice of appeal, the defendant files a notice

of appeal in the trial court and files a motion for extension of time in the appellate

court. See Tex. R. App. P. 26.3. Sells failed to file a notice of appeal and a motion

for an extension of time within the time permitted by the rule. See id.

“Timely filing of a written notice of appeal is a jurisdictional prerequisite to

hearing an appeal.” Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012).

“If a notice of appeal is not timely filed, the court of appeals has no option but to

2 dismiss the appeal for lack of jurisdiction.” Id. Sells did not file a notice of appeal

within the time permitted by Rule 26. He does not argue that he obtained an out-of-

time appeal from the Court of Criminal Appeals. We dismiss the appeal for lack of

jurisdiction. See Tex. R. App. P. 43.2(f).

APPEAL DISMISSED.

PER CURIAM

Submitted on January 31, 2023 Opinion Delivered February 1, 2023 Do Not Publish

Before Horton, Johnson and Wright, JJ.