John Michael Daisy v. State

Opinion

DISMISS; Opinion issued February 20, 2013

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00167-CR

EX PARTE JOHN MICHAEL DAISY

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. WX12-90053-Y

MEMORANDUM OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice Bridges John Michael Daisy was convicted of forgery on August 27, 2009. The trial court

sentenced appellant to two years’ confinement in a state jail, probated for four years. On

September 5, 2012, appellant filed an application for writ of habeas corpus under article 11.072

of the Texas Code of Criminal Procedure. By order dated November 16, 2012, the trial court

denied appellant the relief he sought. Appellant’s notice of appeal was due by Monday,

December 16, 2012. See TEX. R. APP. P. 26.2(a)(1). The Court now has before it appellant’s

February 4, 2013 notice of appeal and motion to extend time to file his notice of appeal. We

conclude we lack jurisdiction over the appeal.

To obtain the benefit of the extension period provided by rule 26.3, appellant had to both

file his notice of appeal in the trial court and file his extension motion in this Court by

Wednesday, January 2, 2013. See TEX. R. APP. P. 4.1(a), 26.2(a)(1); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). Appellant’s joint notice of appeal and extension

motion reflect that they were signed by appellant on January 29, 2013. They are file-stamped

February 4, 2013. Both dates are outside the thirty-day period provided by rule 26.2(a)(1) and

the fifteen-day extension period provided by rule 26.3. Therefore, the documents are untimely,

leaving us without jurisdiction to take any action but to dismiss the appeal. See Slaton, 981

S.W.2d at 210. We deny appellant’s February 4, 2013 motion to extend time to file his notice of

appeal.

We dismiss the appeal for want of jurisdiction.

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

Do Not Publish TEX. R. APP. P. 47 130167F.U05

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

EX PARTE JOHN MICHAEL DAISY On Appeal from the Criminal District Court No. 7, Dallas County, Texas No. 05-13-00167-CR Trial Court Cause No. WX12-90053-Y. Opinion delivered by Justice Bridges, Justices FitzGerald and Myers participating.

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

Judgment entered February 20, 2013.