Kevin Wade Noonkester v. State

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-11-00198-CR

KEVIN WADE NOONKESTER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

MEMORANDUM OPINION1 ----------

Appellant Kevin Wade Noonkester was convicted of sexual assault of a

child, and the trial court sentenced him to fifteen years’ confinement on April 18,

2011. Appellant did not file a motion for new trial, so his notice of appeal was

due May 18, 2011. See Tex. R. App. P. 26.2(a)(1) (providing that notice of

appeal must be filed within thirty days of sentencing in the absence of a timely-

1 See Tex. R. App. P. 47.4. filed motion for new trial). He did not file his notice of appeal until May 31, 2011;

thus, it was untimely.

Accordingly, we informed Appellant by letter on June 3, 2011, that this

appeal was subject to dismissal unless Appellant or any party filed a response

showing grounds for continuing the appeal on or before June 13, 2011.

Appellant responded by filing a motion for extension of time to file his notice of

appeal, but the motion for extension was filed on June 6, 2011, more than fifteen

days after his notice of appeal was due.2 See Tex. R. App. P. 26.3 (requiring

party seeking to extend time to file notice of appeal to file both a notice of appeal

and a motion for extension of time to file notice of appeal within fifteen days of

the day the notice of appeal was due).

A notice of appeal that complies with the requirements of rule 26 is

essential to vest this court with jurisdiction. Tex. R. App. P. 25.2(b), 26.2(a). The

Texas Court of Criminal Appeals has expressly held that, without a timely filed

notice of appeal or motion for extension of time, this court cannot exercise

jurisdiction over an appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.

1996). Only the Texas Court of Criminal Appeals may grant Appellant an out-of-

2 In his motion for extension of time, Appellant contends that his notice of appeal was timely because it was filed within thirty days of the trial court’s May 20, 2011 nunc pro tunc judgment, but a nunc pro tunc judgment does not extend the time for filing under rule 26.2. See Velazquez v. State, No. 05-06-00781-CR, 2007 WL 1041126, at *1 (Tex. App.—Dallas Apr. 9, 2007, no pet.) (mem. op., not designated for publication) (citing Rodarte v. State, 860 S.W.2d 108, 109 & n.1 (Tex. Crim. App. 1993)).

2 time appeal. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2010);

Olivo, 918 S.W.2d at 525 n.8; Cotton v. State, No. 02-10-00001-CR, 2010 WL

520814, at *1 (Tex. App.—Fort Worth Feb. 11, 2010, pet. ref’d) (mem. op., not

designated for publication).

Because Appellant’s notice of appeal and motion for extension to file

notice of appeal were untimely filed, we dismiss the appeal for want of

jurisdiction. See Tex. R. App. P. 26.2(a)(1), 43.2(f).

PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: June 30, 2011