Carmen Franco v. State

Opinion

Opinion issued March 11, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-20-00633-CR ——————————— CARMEN FRANCO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 10 Harris County, Texas Trial Court Case No. 5789

MEMORANDUM OPINION

Appellant, Carmen Franco, appeals from the July 27, 2020 opinion of the

County Criminal Court at Law No. 10, dismissing Franco’s appeal from a municipal

court conviction for a moving violation. We dismiss. Franco was charged with failure to control speed, to which he pleaded not

guilty and proceeded to a jury trial on February 16, 2016. After being found guilty,

judgment was entered assessing a $100 fine. Franco filed a motion for new trial

which was denied on January 19, 2017 without a hearing. Franco appealed this

judgment to the County Criminal Court at Law No. 10 by filing a notice of appeal

on January 27, 2017. The county court issued an opinion on July 27, 2020,

dismissing the appeal for lack of jurisdiction because the notice of appeal was

untimely filed. Franco filed a notice of appeal to this Court on September 3, 2020.

If Franco had filed a motion for new trial, the deadline to file his notice of

appeal would have been extended to 90 days from the date judgment was signed.

See TEX. R. APP. P. 26.2(a)(2). But the record contains no motion for new trial filed

in the county court. Accordingly, his notice of appeal was due to be filed within 30

days after the judgment was signed. See TEX. R. APP. P. 26.2(a)(1). The time for

filing a notice of appeal may be extended if the notice is filed within 15 days after

the deadline and a motion for extension of time complying with Rule 10.5(b) is filed.

See TEX. R. APP. P. 26.3; 10.5(b). Although Franco filed his notice of appeal within

the 15-day period after the deadline, he did not file a motion for extension.

The Court of Criminal Appeals has interpreted Rule 26.3 similarly to the

Texas Supreme Court in regard to amending a defective notice of appeal, but it has

not held that an extension is implied when a notice of appeal is filed within the 15-

2 day period after it is due. See Lair v. State, 321 S.W.2d 158, 159 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d); Wells v. State, No. 01-18-00558-CR, 2018 WL

4167934, at *1 (Tex. App.—Houston [1st Dist.] Aug. 31, 2018, no pet.) (mem.

opinion; not designated for publication). Therefore, to extend the time to file the

notice of appeal, the appellant must file a motion for extension.

On October 1, 2020, this Court issued a notice that the appeal might be

dismissed for lack of jurisdiction and gave appellant ten days to file a response

establishing that we had jurisdiction. No response was filed.

Accordingly, we dismiss the appeal. See TEX. R. APP. P. 43.2(f). Any pending

motions are dismissed as moot.

PER CURIAM Panel consists of Justices Kelly, Landau, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).