Kevin Lamar Johnson v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2018
• Docket: 04-17-00750-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-17-00750-CR

Kevin Lamar JOHNSON, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2002CR4779 Honorable Philip A. Kazen Jr., Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: January 31, 2018

DISMISSED FOR WANT OF JURISDICTION

In the matter underlying this appeal, Appellant Kevin Lamar Johnson was convicted of

aggravated robbery and, on November 6, 2002, he was sentenced to life imprisonment. In 2015,

Appellant filed a motion for DNA testing, he appeared at the hearing, and the trial court denied his

motion on August 14, 2015. More than two years later, Appellant filed a notice of appeal.

Because Appellant’s notice of appeal was not timely filed, and his untimely notice of

appeal did not invoke this court’s jurisdiction, we dismiss this appeal for want of jurisdiction. 04-17-00750-CR

BACKGROUND

On July 24, 2002, Appellant was indicted for aggravated robbery of an elderly person

causing bodily injury. Appellant was tried by jury and convicted of aggravated robbery (repeater)

on November 6, 2002, was fined $10,000.00, and was sentenced to imprisonment for life in the

Texas Department of Criminal Justice—Institutional Division.

On June 5, 2015, at Appellant’s request, the trial court appointed counsel to represent

Appellant in his DNA motion, and counsel filed a motion. Counsel and Appellant appeared in

person at the hearing on the motion—and the trial court denied the motion in open court on August

14, 2015. Appellant did not file a motion to reconsider the order, a motion for new trial, or any

other post-decision pleading pertaining to the trial court’s August 14, 2015 order—until Appellant

filed a notice of appeal on November 9, 2017. Appellant’s court-appointed appellate counsel

concedes Appellant’s notice of appeal was not timely.

LATE NOTICE OF APPEAL

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo v.

State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Appellant’s notice of appeal was due on

September 14, 2015, see TEX. R. APP. P. 26.2, or his notice of appeal and a motion for extension

of time to file the notice of appeal were due not later than September 28, 2015, see id. R. 26.3.

Appellant’s November 9, 2017 notice of appeal was not timely filed and did not invoke

this court’s appellate jurisdiction. See TEX. R. APP. P. 26.2(a); Olivo, 918 S.W.2d at 522. We

dismiss this appeal for want of jurisdiction. See Olivo, 918 S.W.2d at 522; see also Ater v. Eighth

Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).

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Appellant’s January 4, 2018 pro se motion to represent himself in this appeal is moot.

Because we lack jurisdiction, we do not consider Appellant’s January 17, 2018 pro se brief.

DO NOT PUBLISH

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