Ivory James Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 25, 2023
• Docket: 01-23-00371-CR
• Status: Published

Opinion

Opinion issued July 25, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00371-CR ——————————— IVORY JAMES JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1663686

MEMORANDUM OPINION

A jury convicted appellant, Ivory James Johnson, of the offense of aggravated

robbery with a deadly weapon. On March 7, 2023, the trial court signed its judgment

of conviction sentencing appellant to nine years’ imprisonment. Appellant, acting pro se, filed a notice of appeal with our Court on April 26, 2023.1 The notice of

appeal was subsequently filed with the trial court on May 2, 2023. We dismiss the

appeal.

A timely notice of appeal is necessary to invoke a court of appeals’

jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In a

criminal case, a defendant’s notice of appeal is due within thirty days after sentence

is imposed in open court or the trial court enters an appealable order. See TEX. R.

APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to ninety days

after the sentence is imposed if the defendant timely files a motion for new

trial. See TEX. R. APP. P. 26.2(a)(2). The time for filing a notice of appeal may be

further extended if, within fifteen days of the deadline for filing the notice of appeal,

appellant files the notice of appeal and a motion for extension of time compliant with

Rule 10.5(b). See TEX. R. APP. P. 26.3.

Here, appellant’s sentence was imposed on March 7, 2023. Because the

clerk’s record does not reflect that any post-trial motions were filed that would

extend the notice of appeal deadline, appellant’s notice of appeal was due within

thirty days after his sentence was imposed—that is, by April 6, 2023. See TEX. R.

1 Although Rule 25.2 of the Texas Rules of Appellate Procedure requires an appellant to file his notice of appeal with the trial court clerk, the rule further states that “[i]f the notice of appeal is received in the court of appeals, the clerk of that court shall immediately record on the notice the date that it was received and send the notice to the trial court clerk.” TEX. R. APP. P 25.2(c)(1). 2 APP. P 26.2(a)(1). No motions to extend the time for filing a notice of appeal were

filed with fifteen days of the deadline. See TEX. R. APP. P. 26.3. Thus, even

considering appellant’s notice of appeal to have been filed on April 26, 2023 (the

date the notice of appeal was mistakenly filed with our Court), appellant’s notice of

appeal was untimely filed twenty days after the deadline.

This Court has no authority to allow the late filing of a notice of appeal except

as provided by Rule 26.3. See Olivo, 918 S.W.2d at 522. If an appeal is not timely

perfected, then a court of appeals does not obtain jurisdiction to address the merits

of the appeal and can take no action other than to dismiss the appeal. See Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

Accordingly, we dismiss this appeal for want of jurisdiction. We dismiss any

pending motions as moot.

PER CURIAM

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

Do not publish. TEX. R. APP. P. 47.2(b).