David Carter McCoy v. State

• Court: Court of Appeals of Texas
• Decided: June 18, 2002
• Docket: 12-02-00158-CR
• Status: Published

Opinion

lee, elmer edward v. state

NO. 12-02-00158-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DAVID CARTER MCCOY,

§ APPEAL FROM THE

APPELLANT

V.

§ COUNTY COURT AT LAW NO. 3

THE STATE OF TEXAS,

APPELLEE

§ SMITH COUNTY, TEXAS

---

MEMORANDUM OPINION ⁽¹⁾

This appeal is being dismissed for want of jurisdiction. Appellant was convicted of the offense of failure to appear and fined $150.00. Thereafter, Appellant timely filed a motion for new trial. Texas Rule of Appellate Procedure 26.2 ⁽²⁾ provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. Id. Since Appellant timely filed a motion for new trial, his notice of appeal was due to have been filed on or before May 23, 2002. Appellant did not file his notice of appeal until June 4, 2002.

Rule 26.3 provides that an appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party files a notice of appeal and a motion to extend the time for filing the notice. Although Appellant filed his notice of appeal within the fifteen-day time period provided in the rule, he did not file his motion to extend time until June 10, 2002, which was more than fifteen days after his notice of appeal was due to have been filed.

When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, we lack jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for want of jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996).

Therefore, Appellant's motion for extension of time to file notice of appeal is overruled, and this appeal is dismissed for want of jurisdiction.

Opinion delivered June 18, 2002.

Panel consisted of Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1. See Tex. R. App. P. 47.1.

2.

All further rule references will be to the current edition of the Texas Rules of Appellate Procedure unless otherwise specified.