James L. Howard v. State

• Court: Court of Appeals of Texas
• Decided: April 7, 2015
• Docket: 05-15-00386-CR
• Status: Published

Opinion

DISMISS; and Opinion Filed April 7, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00386-CR

JAMES L. HOWARD, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F93-02490-I

MEMORANDUM OPINION Before Justices Bridges, Fillmore, and Brown Opinion by Justice Fillmore James Howard was convicted of aggravated sexual assault of child and sentenced to

forty-five years’ imprisonment. His conviction was affirmed on direct appeal. Howard v. State,

No. 05-95-01428-CR, 1997 WL 55850 (Tex. App.––Dallas Feb. 12, 1997, pet. ref’d) (not

designated for publication). On June 6, 2014, appellant filed a motion for post-conviction DNA

testing. The trial court denied appellant’s motion by written order dated November 18, 2014,

which included language making it effective ten days after the signing date. Appellant filed a

pro se notice of appeal from the trial court’s order on March 3, 2015. We conclude we lack

jurisdiction over the appeal.

“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be

legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id. at 523. “The standard to determine whether an appellate court has jurisdiction to hear and

determine a case ‘is not whether the appeal is precluded by law, but whether the appeal is

authorized by law.’” Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting

Abbott v. State, 271 S.W.3d 694, 697–97 (Tex. Crim. App. 2008)). To invoke this Court’s

jurisdiction, an appellant must file his notice of appeal within the time period provided by the

Texas Rules of Appellate Procedure. See Blanton, 369 S.W.3d at 902; Olivo, 918 S.W.2d at 523;

see also TEX. R. APP. P. 26.2(a) (time to file notice of appeal); Slaton v. State, 981 S.W.2d 208,

210 (Tex. Crim. App. 1998) (per curiam).

The trial court signed the order denying appellant’s motion on November 18, 2014, and,

relying on State v. Rosenbaum, 818 S.W.2d 398 (Tex. Crim. App. 1991), included language

making it effective as of November 28, 2014. Therefore, at the latest, his notice of appeal was

due by Monday, December 29, 2014. See id.; see also TEX. R. APP. P. 4.1(a), 26.2(a)(1).

Appellant’s March 3, 2015 notice of appeal is untimely, leaving us without jurisdiction over the

appeal. See Blanton, 369 S.W.3d at 902; Olivo, 918 S.W.2d at 523; Slaton v. State, 981 S.W.2d

at 210.

We dismiss the appeal for want of jurisdiction.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

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

150386F.U05

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

JAMES L. HOWARD, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-15-00386-CR V. Trial Court Cause No. F93-02490-I. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Bridges and Brown participating.

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

Judgment entered this 7th day of April, 2015.

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