Fred Cotton, Jr. v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 2-10-001-CR

FRED COTTON, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION 1

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The trial court revoked Appellant Fred Cotton, Jr.’s deferred adjudication

community supervision, convicted him of aggravated sexual assault, and

sentenced him to forty-five years’ confinement. The trial court imposed the

sentence on June 12, 2009. Appellant filed a timely motion for new trial, so

1 … See Tex. R. App. P. 47.4. his notice of appeal was due September 10, 2009.2 He did not file his notice

of appeal until December 31, 2009; thus, it was untimely.

Accordingly, we informed Appellant by letter on January 6, 2010, that

this appeal was subject to dismissal unless Appellant or any party showed

grounds for continuing the appeal on or before January 19, 2010. Appellant

did respond, but his response does not show grounds on which this court may

rely for continuing his appeal.

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

essential to vest this court with jurisdiction. 3 The Texas Court of Criminal

Appeals has expressly held that, without a timely filed notice of appeal or

motion for extension of time, this court cannot exercise jurisdiction over an

appeal.4 Only the Texas Court of Criminal Appeals may grant Appellant an out-

of-time appeal.5

2 … See Tex. R. App. P. 26.2(a)(2) (providing that notice of appeal must be filed within ninety days of sentencing). 3 … Id. 4 … Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). 5 … See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2009); Olivo, 918 S.W.2d at 525 n.8; Wright v. State, No. 02-05-00076-CR, 2005 WL 1594367, at *1 n.2 (Tex. App.—Fort Worth July 7, 2005, no pet.) (mem. op., not designated for publication).

2 Because Appellant’s notice of appeal was untimely filed, we dismiss this

case for want of jurisdiction.6

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH Tex.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

DELIVERED: February 11, 2010

6 … See Tex. R. App. P. 26.2(a)(2), 43.2(f).