Geovany Humberto Lopez v. State

• Court: Court of Appeals of Texas
• Decided: September 29, 2014
• Docket: 05-14-01174-CR
• Status: Published

Opinion

DISMISS; and Opinion Filed September 29, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01174-CR

GEOVANY HUMBERTO LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause No. F06-45178-W

MEMORANDUM OPINION Before Justices FitzGerald, Fillmore, and Stoddart Opinion by Justice Fillmore Geovany Humberto Lopez was convicted of intoxication assault, see TEX. PENAL CODE

ANN. § 49.07 (West 2011), and sentenced to five years’ imprisonment. Sentence was imposed in

open court on July 15, 2014. No motion for new trial was filed; therefore, appellant’s notice of

appeal was due by August 14, 2014. See TEX. R. APP. P. 26.2(a)(1). Appellant’s notice of

appeal is hand-dated August 28, 2014 and file-stamped September 11, 2014. Even though the

handwritten date is within the fifteen-day extension period provided by rule 26.3, nothing

reflects the notice of appeal was mailed, or delivered to prison authorities for mailing, on or

before August 29, 2014. See TEX. R. APP. P. 9.2(b), 26.3(a); Campbell v. State, 320 S.W.3d 338

(Tex. Crim. App. 2010) (pro se “prisoner mailbox rule”). Moreover, appellant did not file an

extension motion in this Court by August 29, 2014. See TEX. R. APP. P. 26.3(b); Slaton v. State,

981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam) (notice of appeal compliant with requirements of rule 26 essential to vest court of appeals with jurisdiction); Olivo v. State, 918

S.W.2d 519, 522 (Tex. Crim. App. 1996) (court of appeals may grant extension of time to file

notice of appeal if notice is filed within fifteen days after last day allowed and, within same

period, a motion is filed in court of appeals reasonably explaining need for extension of time).

Therefore, we asked the parties to file letter briefs addressing our jurisdiction over the appeal.

Appellant’s counsel filed a letter brief confirming that the notice of appeal is untimely and

stating appellant does not desire to pursue the appeal.

We agree the notice of appeal is untimely, leaving us without jurisdiction over the appeal.

We dismiss the appeal for want of jurisdiction.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47

141174F.U05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GEOVANY HUMBERTO LOPEZ, On Appeal from the 363rd Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. F06-45178-W. No. 05-14-01174-CR V. Opinion delivered by Justice Fillmore, Justices FitzGerald and Stoddart THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered this 29th day of September, 2014.

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