David Duane Dunigan v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-09-00021-CR

DAVID DUANE DUNIGAN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 32765CR

OPINION

David Duane Dunigan filed his notice of appeal ninety-eight days after the court

imposed sentence.1 Therefore, even though Dunigan timely filed a motion for new trial,

the notice of appeal is untimely. See TEX. R. APP. P. 26.2(a)(2). Because Dunigan’s notice

of appeal is untimely and because he has not shown grounds for continuing the appeal,

we will dismiss the appeal for want of jurisdiction.

1 The trial court imposed sentence on September 11, 2008. Dunigan filed his notice of appeal on December 18, 2008. The Clerk of this Court notified Dunigan that the appeal may be dismissed for

want of jurisdiction if he did not file a response showing grounds for continuing the

appeal. Id. 44.3. Dunigan responded by filing a motion asking this Court to maintain

the appeal on the Court’s docket or, in the alternative, to grant an extension of time to

file the notice of appeal. We address the latter request first.

Any extension motion must be filed within fifteen days after the deadline for

filing the notice of appeal. Id. 26.3. Because Dunigan’s motion was filed more than two

months after the notice of appeal was due, the motion is denied insofar as it seeks an

extension of time to file the notice of appeal. See Thompson v. State, No. 02-05-00367-CR,

2005 Tex. App. LEXIS 9211, at *2 (Tex. App.—Fort Worth Nov. 3, 2005, no pet.) (mem.

op.); see also Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (interpreting

former Rule of Appellate Procedure 41(b)(2)).

Dunigan also cites Rule 44.3 and asks the Court to maintain the appeal on the

docket because he has a meritorious ground for appeal and because counsel

inadvertently miscalculated the deadline for the notice of appeal. Rule 44.3 provides,

“A court of appeals must not affirm or reverse a judgment or dismiss an appeal for

formal defects or irregularities in appellate procedure without allowing a reasonable

time to correct or amend the defects or irregularities.” Id. 44.3. However, Rule 44.3 may

not be used to enlarge the deadline for perfecting an appeal in a criminal case. See

Olivo, 918 S.W.2d at 523 (interpreting former Rule of Appellate Procedure 83).

Both Dunigan’s notice of appeal and his motion for an extension of time to file

the notice of appeal are untimely. Accordingly, the appeal is dismissed for want of

Dunigan v. State Page 2 jurisdiction. See Olivo, 918 S.W.2d at 522-23; Thompson, 2005 Tex. App. LEXIS 9211, at

*2-3.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Appeal dismissed Opinion delivered and filed March 25, 2009 Publish [CR25]

Dunigan v. State Page 3