Jeremy Steven Clary v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 17, 2024
• Docket: 09-23-00399-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00399-CR __________________

JEREMY STEVEN CLARY, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. CR13,824 __________________________________________________________________

MEMORANDUM OPINION

On November 2, 2023, the trial court sentenced Jeremy Steven Clary after a

jury found Clary guilty of sexual assault of a child in Trial Cause Number CR13,824.

After Clary was found guilty and sentenced in Trial Cause Number CR13,824, in a

different case in Trial Cause Number CR14,088, on November 16, 2023, the State

filed a motion to dismiss and the trial court dismissed an indictment that charged

Clary with indecency with a child. On December 8, 2023, Clary filed a pro se notice

of appeal from the judgment in Trial Cause Number CR14,088. On February 24,

1 2024, Clary filed an amended notice of appeal that changed the trial cause number

in his previous notice of appeal from CR14,088 to CR13,824.

A clerical defect in a notice of appeal should not be described as affecting

jurisdiction. Few v. State, 230 S.W.3d 184, 189 (Tex. Crim. App. 2007). If a notice

of appeal mistakenly recites the wrong case number, the appellate court must provide

a reasonable opportunity for the appellant to amend the notice of appeal to correct

the information required by Rule 25.2(c). Id. at 190. An appellant may correct a

defect in a notice of appeal by filing an amended notice of appeal that relates back

to the date the appellant filed the defective notice of appeal. See Tex R. App. P.

25.2(f). But Rule 25.2(f) cannot be used to enlarge the appellate court’s jurisdiction

See State v. Riewe, 13 S.W.3d 408, 413-14 (Tex. Crim. App. 2000).

The trial court sentenced Clary in Trial Cause Number 13,824 on November

2, 2023. Clary did not file a motion for new trial. To perfect his appeal, Clary had to

file a notice of appeal by Monday, December 4, 2023. See Tex. R. App. P. 26.2(a)(1);

see also Tex. R. App. P. 4.1(a). To obtain an extension of time to file his notice of

appeal, Clary had to file the notice of appeal with the trial court within fifteen days

of the date the notice was due, and he also had to file a motion for an extension of

time with the appellate court. See Tex. R. App. P. 26.3. Clary failed to timely request

an extension of time to file his notice of appeal. “When a notice of appeal, but no

motion for extension of time, is filed within the fifteen-day period, the court of

2 appeals lacks jurisdiction to dispose of the purported appeal in any manner other

than by dismissing it for lack of jurisdiction.” Olivo v. State, 918 S.W.2d 519, 523

(Tex. Crim. App. 1996). We dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED.

PER CURIAM

Submitted on April 16, 2024 Opinion Delivered April 17, 2024 Do Not Publish

Before Horton, Johnson and Wright, JJ.