Kvaughandre LaPaul Presley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 12, 2023
• Docket: 05-23-00233-CR
• Status: Published

Opinion

DISMISS and Opinion Filed April 12, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00233-CR

KVAUGHANDRE LAPAUL PRESLEY, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F21-25070-X

MEMORANDUM OPINION Before Chief Justice Burns, Justice Nowell, and Justice Garcia Opinion by Chief Justice Burns Kvaughandre Lapaul Presley appeals his conviction for capital murder. The

record demonstrates we lack jurisdiction over this appeal because the notice of

appeal was not timely filed. Accordingly, we dismiss the appeal for want of

jurisdiction.

A defendant perfects his appeal by timely filing a written notice of appeal with

the trial court clerk. See TEX. R. APP. P. 25.2(c). To be timely, the notice of appeal

must be filed within thirty days after the date sentence was imposed or within ninety

days after sentencing if the defendant timely filed a motion for new trial. See TEX. R. APP. P. 26.2(a). A motion for new trial must be filed no later than thirty days after

sentence is imposed or suspended in open court. TEX. R. APP. P. 21.4(a). The rules

of appellate procedure allow the time to file a notice of appeal to be extended if the

party files, within fifteen days of the filing deadline, the notice of appeal in the trial

court and a motion to extend the time to file the notice of appeal in the court of

appeals. See TEX. R. APP. P. 10.5(b), 26.3. In the absence of a timely perfected

notice of appeal, the Court must dismiss the appeal for lack of jurisdiction. Ex parte

Castillo, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Slaton v. State, 981 S.W.2d

208, 210 (Tex. Crim. App. 1998) (per curiam).

Here, the trial court imposed punishment on September 23, 2022. The notice

of appeal or motion for new trial were due Monday, October 24, 2022. Appellant

moved for a new trial on March 8, 2023, which was untimely. Therefore, appellant’s

notice of appeal was due Monday October 24, 2022. Any motion to extend the time

to file the notice of appeal would have been due on or before November 8, 2022.

Appellant’s notice of appeal was filed March 8, 2023. Thus, appellant’s

notice of appeal was not timely, and we lack jurisdiction over this appeal. Ex parte

Castillo, 369 S.W.3d at 198. We requested letter briefs from the parties concerning

the Court’s jurisdiction. Appellant’s counsel filed a letter brief stating that based on

the record, it appears the Court does not have jurisdiction over this appeal.

–2– We dismiss this appeal for want of jurisdiction.

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 230233F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KVAUGHANDRE LAPAUL On Appeal from the Criminal District PRESLEY, Appellant Court No. 6, Dallas County, Texas Trial Court Cause No. F21-25070-X. No. 05-23-00233-CR V. Opinion delivered by Chief Justice Burns. Justices Nowell and Garcia THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, this appeal is DISMISSED for wan of jurisdiction.

Judgment entered April 12, 2023

–4–