Josiah Raibon v. State

• Court: Court of Appeals of Texas
• Decided: April 17, 2019
• Docket: 12-19-00118-CR
• Status: Published

Opinion

NO. 12-19-00118-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOSIAH RAIBON, § APPEAL FROM THE 7TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM This appeal is being dismissed for want of jurisdiction. Josiah Raibon appeals from his conviction for indecency with a child. Under the rules of appellate procedure, the notice of appeal must be filed within thirty days after the sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or within ninety days if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a). Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. TEX. R. APP. P. 26.3. In this case, sentence was imposed on November 30, 2018. Appellant filed his notice of appeal on April 2, 2019, long after the time for filing a notice of appeal under Rule 26.2(a) or for seeking a motion to extend under Rule 26.3. According to the case information sheet from the Smith County District Clerk and Appellant’s docketing statement, Appellant did not file a motion for new trial. On April 4, 2019, this Court notified Appellant that the information received failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the time allowed by Rule 26.2 and there was no timely motion for an extension of time to file same as permitted by Rule 26.3. The notice further advised Appellant that the appeal would be dismissed unless the information was amended on or before April 15, 2019, to show this Court’s jurisdiction. That deadline passed without a response from Appellant. “[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted only when they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011). This Court is not authorized to extend the time for perfecting an appeal except as provided by the Texas Rules of Appellate Procedure.1 See TEX. R. APP. P. 26.2, 26.3; see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In the present case, Appellant’s appeal is untimely. Accordingly, we dismiss Appellant’s appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). Opinion delivered April 17, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

1 Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 17, 2019

JOSIAH RAIBON, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0571-16)

THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.