Brandon Lee Nix v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00348-CR

BRANDON LEE NIX APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT AT LAW NO. 3 OF DENTON COUNTY

MEMORANDUM OPINION1 ------------

On May 5, 2010, after finding that Appellant Brandon Lee Nix violated the

terms and conditions of his community supervision, the trial court adjudicated Nix

guilty of, and sentenced him to 120 days’ confinement for, misdemeanor theft of

property with a value of $50 or more but less than $500. See Tex. Penal Code

Ann. § 31.03(e)(2)(A)(i) (Vernon 2003).

1 See Tex. R. App. P. 47.4. Nix’s motion for new trial was due June 4, 2010, but it was not filed until

June 7, 2010. See Tex. R. App. P. 21.4(a). Therefore, his notice of appeal was

also due June 4, 2010. See Tex. R. App. P. 26.2(a). On August 20, 2010, Nix

filed his notice of appeal with a motion to extend time to file the notice of appeal.2

On September 9, 2010, we notified Nix’s counsel of the apparent

untimeliness of the appeal; requested that he advise whether the motion for new

trial was properly addressed, stamped, and mailed by the United States Postal

Service to the proper trial court clerk on or before June 4, 2010; stated that any

response must be filed on or before September 20, 2010; and stated that the

appeal would be dismissed for want of jurisdiction if the court determined that the

appeal was not timely perfected. See Tex. R. App. P. 9.2(b)(1), (2).3 We have

received no response.

A notice of appeal that complies with the requirements of rule 26 is

essential to vest this court with jurisdiction. See Tex. R. App. P. 26.2(a)(1)

(providing that notice of appeal must be filed within thirty days of sentencing).

The court of criminal appeals has expressly held that, without a timely filed notice

2 We denied Nix’s motion to extend time to file his notice of appeal on September 27, 2010, because without a showing that the motion for new trial was timely filed, the motion to extend time to file the notice of appeal was also untimely. See Tex. R. App. P. 26.3. 3 Under rule of appellate procedure 9.2(b), a notice of appeal is timely only if it was deposited with the United States Postal Service on or before the last day for filing and received by the trial court within ten days after the filing deadline. Tex. R. App. P. 9.2(b)(1). Our September 9, 2010 letter also listed the items that we would accept as evidence of proof of mailing.

2 of appeal or motion for extension of time, we cannot exercise jurisdiction over an

appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because

there has been no showing that Nix’s motion for new trial was timely filed, his

notice of appeal was correspondingly untimely. Therefore, we dismiss the

appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).

PER CURIAM

PANEL: MCCOY, MEIER and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: October 14, 2010