Hugo Israel Martinez v. State of Texas

• Court: Court of Appeals of Texas
• Decided: March 3, 2011
• Docket: 11-10-00386-CR
• Status: Published

Opinion

Opinion filed March 3, 2011

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00386-CR

                             HUGO ISRAEL MARTINEZ, Appellant

                                                             V.

                                      STATE OF TEXAS, Appellee

                                   On Appeal from the 161st District Court

                                                             Ector County, Texas

                                                   Trial Court Cause No. B-35,031

                                            M E M O R A N D U M   O P I N I O N

            The jury convicted Hugo Israel Martinez, upon his plea of guilty, of the offense of possession of between four and two hundred grams of cocaine with the intent to deliver.  The jury assessed punishment at confinement for sixteen years.  Because no notice of appeal was timely filed, we dismiss the appeal.

            Appellant’s sentence was imposed on August 31, 2010.  A timely motion for new trial was filed on September 27 and was overruled by operation of law pursuant to Tex. R. App. P. 21.8.  On December 22, 2010, appellant filed a pro se request for the appointment of counsel to represent him on appeal, which we consider to be appellant’s notice of appeal.  Appellate counsel was subsequently appointed, and he filed a supplemental notice of appeal on appellant’s behalf.  On January 25, 2011, this court notified the parties that the notice of appeal appeared to be untimely and requested that appellant provide proof that the notice of appeal was timely filed.  In response, appellant filed in this court on February 14, 2011, a motion requesting an extension of time to file his notice of appeal.  Appellate counsel notes that appellant believed his trial counsel had filed a notice of appeal and that appellate counsel was not appointed until after the deadline for filing the notice of appeal.  The clerk’s record has now been received in this court.  Our review of the clerk’s record shows that no notice of appeal was filed prior to appellant’s December 22 request for the appointment of counsel.

            Pursuant to Tex. R. App. P. 26.2(a)(2), the notice of appeal was due ninety days after the day sentence was imposed.  In this case, the due date was November 29, 2010.  Pursuant to Tex. R. App. P. 26.3, the motion for extension of time to file the notice of appeal was due fifteen days thereafter:  December 14, 2010.  Both the notice of appeal and the motion for extension must be filed within fifteen days after the deadline for filing the notice of appeal.  Rule 26.3.  In this case, neither was filed within that time period. 

Absent a timely filed notice of appeal, we do not have jurisdiction to entertain the appeal.  Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993).  We are also without jurisdiction to grant a motion for extension that is filed more than fifteen days after the date that the notice of appeal was due.  Olivo, 918 S.W.2d 519. 

Accordingly, appellant’s motion to extend the time to file the notice of appeal is overruled, and the appeal is dismissed for want of jurisdiction. 

                                                                                    PER CURIAM

March 3, 2011

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.