Kendrick Lamont Johnson v. State

• Court: Court of Appeals of Texas
• Decided: February 16, 2017
• Docket: 05-17-00109-CR
• Status: Published

Opinion

Dismissed; Opinion Filed February 16, 2017.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00109-CR

KENDRICK LAMONT JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F13-58098-L

MEMORANDUM OPINION Before Justices Evans, Stoddart, and Boatright Opinion by Justice Evans Kendrick Lamont Johnson appeals his February 16, 2016 conviction for murder.

Appellant filed a notice of appeal with this Court on February 1, 2017. We dismiss this appeal

for lack of jurisdiction.

“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, 696–97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex.

Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX.

CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R.

APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by

criminal defendants only after conviction or the entry of an appealable order and a timely filed

notice of appeal. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.);

TEX. R. APP. P. 26.2(a).

Appellant was convicted and sentenced on February 16, 2016; absent a timely motion for

new trial, appellant’s notice of appeal was due March 17, 2016. TEX. R. APP. P. 26.2(a).

Appellant filed his notice of appeal on February 1, 2017, outside the thirty-day period allowed by

rule 26.2. Because appellant’s notice of appeal is untimely, we lack jurisdiction over this appeal.

We dismiss this appeal for want of jurisdiction.

/David W. Evans/ Do Not Publish DAVID EVANS TEX. R. APP. P. 47.2(b) JUSTICE 170109F.U05

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

KENDRICK LAMONT JOHNSON, On Appeal from the Criminal District Court Appellant No. 5, Dallas County, Texas Trial Court Cause No. F13-58098-L. No. 05-17-00109-CR V. Opinion delivered by Justice Evans, Justices Stoddart and Boatright participating. THE STATE OF TEXAS, Appellee

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

Judgment entered this 16th day of February, 2017.

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