Derik Lin James v. State

• Court: Court of Appeals of Texas
• Decided: May 5, 2011
• Docket: 14-11-00324-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed May 5, 2011.

In The

Fourteenth Court of Appeals

____________

NO. 14-11-00324-CR

DERIK LIN JAMES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1230480

MEMORANDUM OPINION

Appellant entered a guilty plea to driving while intoxicated with a passenger under the age of fifteen.  In accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant to confinement for two years in the Institutional Division of the Texas Department of Criminal Justice, suspended for two years.  Subsequently, the State moved to revoke appellant’s community supervision.  The trial court granted the motion and on February 24, 2011, sentenced appellant to confinement for seven months in the State Jail Division of the Texas Department of Criminal Justice and assessed a fine of $100.  No motion for new trial was filed.  Appellant’s pro se notice of appeal was not filed until April 7, 2011.

A defendant’s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial.  See Tex. R. App. P. 26.2(a)(1).  A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal.  Under those circumstances it can take no action other than to dismiss the appeal.  Id.

Appellant’s notice of appeal was due March 28, 2011.  The record reflects appellant dated his notice of appeal “3-31-2011.”  The envelope has a handwritten date of “04/03/11” and it was postmarked April 5th or 6th, 2011.  Even if we considered these dates, none are timely. 

Although the date of filing is within fifteen days after the deadline, no motion for extension of time was filed.  See Tex. R. App. P. 26.3.  In a criminal case, a late notice of appeal will not invoke our jurisdiction unless a motion for extension of time is also filed within fifteen days of the last day allowed for filing the notice of appeal.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.1996).

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Panel consists of Justices Frost, Jamison and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).