Kevin Elmore v. State

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00003-CR

KEVIN ELMORE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 106th District Court Lynn County, Texas Trial Court No. 17-3234, Honorable Carter T. Schildknecht, Presiding

January 12, 2018

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

Appellant Kevin Elmore attempts to appeal the revocation of his probation for

aggravated assault on a family member and sentence to ten years’ imprisonment. We

dismiss the appeal for want of jurisdiction.

Appellant’s sentence was imposed on November 7, 2017. Because appellant did

not file a motion for new trial, his notice of appeal was due within thirty days, by December

7, 2017. See TEX. R. APP. P. 26.2(a)(1) (stating that a notice of appeal must be filed within thirty days after the day sentence is imposed in open court). Appellant did not file

a notice of appeal until December 18, 2017.

A timely notice of appeal is required to invoke this court’s appellate jurisdiction.

Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). If the notice is untimely,

a court of appeals can take no action other than to dismiss the proceeding for lack of

jurisdiction. Id. A court of appeals may extend the deadline to file a notice of appeal if,

within fifteen days of the deadline for filing the notice, the appellant files a notice of appeal

in the trial court and, within that same fifteen-day deadline, files a proper motion to extend

the time to file a notice of appeal in the appellate court. TEX. R. APP. P. 26.3, 10.5(b);

Castillo, 369 S.W.3d at 198 n.10. Although appellant filed his notice of appeal within the

fifteen-day extension period, he did not file a motion for extension.1 See Olivo v. State,

918 S.W. 2d 519, 523 (Tex. Crim. App. 1996). Appellant’s failure to timely file a notice of

appeal, therefore, prevents this court from exercising jurisdiction over his appeal.2

We dismiss the appeal for want of jurisdiction.

Per Curiam

Do not publish.

1 Appellant’s notice of appeal provides “[t]he Defendant will ask the Court of Appeals for permission

to file a Late Notice of Appeal within the 15 Day window period.” However, no such motion was filed. 2The appropriate vehicle for seeking an out-of-time appeal from a final felony conviction is by writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure.