Gary Shepard v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2009
• Docket: 06-09-00130-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-09-00130-CR ______________________________

GARY SHEPARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law Hunt County, Texas Trial Court No. CR0800474

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

Gary Shepard appeals from his conviction of driving while intoxicated. Shepard's sentence

was imposed November 7, 2008. Shepard filed a motion for new trial April 15, 2009, by hand

delivering it to the office for the County Court at Law of Hunt County. His notice of appeal was

filed June 19, 2009.

Shepard has filed a motion with this Court for us to grant an out-of-time appeal. In State v.

Riewe, the Texas Court of Criminal Appeals stated, "the time limits set forth in the Rules of

Appellate Procedure are not discretionary. The courts of appeals have no authority to suspend the

operation of a rule of appellate procedure in order to create jurisdiction in the court of appeals where

no jurisdiction exists." 13 S.W.3d 408, 412 (Tex. Crim. App. 2000), overruled on other grounds

by Bayless v. State, 91 S.W.3d 801 (Tex. Crim. App. 2002) (quoting Garza v. State, 896 S.W.2d 192,

194 (Tex. Crim. App. 1995)). This Court has no authority to grant an out-of-time appeal. We

overrule Shepard's motion.1

Shepard had thirty days after the day sentence was imposed to file a notice of appeal, or to

timely file a motion for new trial and thereby extend his time to file a notice of appeal. See TEX . R.

APP . P. 26.2(a)(1), 21.4. Since Shepard's sentence was imposed November 7, 2008, the thirty days

expired on Monday, December 8, 2008. Shepard filed his motion for new trial April 15, 2009. It

1 Out-of-time appeals are available only by the grant of a writ of habeas corpus on application to the Texas Court of Criminal Appeals. See TEX . CODE CRIM . PROC. ANN . art. 11.07 (Vernon Supp. 2008).

2 was not timely. His notice of appeal was thus due on or before December 8, 2008, but was not filed

until June 19, 2009. A late notice of appeal invokes the appellate court's jurisdiction only if (1) it

is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is

filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal,

and (3) the court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519

(Tex. Crim. App. 1996). Further, when a notice of appeal is filed within the fifteen-day period but

no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id. at 522

(citing Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993)).

The Texas Court of Criminal Appeals interprets Rule 26.3 of the Rules of Appellate

Procedure strictly to require an appellant in a criminal case to file his notice of appeal and a motion

for extension within the fifteen-day period for filing a late notice of appeal. Id. at 522–26; see TEX .

R. APP . P. 26.3. The Texas Court of Criminal Appeals has expressly held that without a timely-filed

notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal. See

Olivo at 522; see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998). This appeal

is untimely brought, and we are without jurisdiction to hear this case.

3 We dismiss this appeal for want of jurisdiction.

Bailey C. Moseley Justice

Date Submitted: July 30, 2009 Date Decided: July 31, 2009

Do Not Publish