Larry Craig Madore v. State

• Court: Court of Appeals of Texas
• Decided: July 19, 2018
• Docket: 02-18-00218-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-18-00218-CR

LARRY CRAIG MADORE APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1527527R

MEMORANDUM OPINION1

Appellant Larry Craig Madore attempts to appeal from his conviction and

his forty-five-year sentence for continuous sexual abuse of a young child along

with his convictions and his ten-year consecutive sentences for three counts of

sexual assault of a child.2 Because the record does not establish that he

1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. §§ 21.02(b), 22.011(a) (West Supp. 2017). properly invoked our jurisdiction by filing a timely notice of appeal, we dismiss the

appeal.

On February 8, 2018, the trial court sentenced Madore with respect to all

four of his convictions. He filed a timely motion for new trial. Therefore, his

notice of appeal was due ninety days after his sentencing date, on May 9, 2018.

See Tex. R. App. P. 4.1(a), 26.2(a)(2). He filed a notice of appeal on May 10,

2018—one day late—and did not file a motion for an extension of time to file the

notice of appeal. See Tex. R. App. P. 26.3(b).

We sent Madore a letter expressing our concern that we lack jurisdiction

because the notice of appeal was not timely. We informed him that unless he

showed grounds for continuing the appeal, we would dismiss it. We told him that

his response was to be verified if it depended on facts outside the record. See

Tex. R. App. P. 10.2(a).

Madore responded to our letter with an unverified letter. In the letter, his

counsel stated that a “paper copy of a notice of appeal . . . was submitted to the

clerk’s office by hand on March 9, 2018[,] but its whereabouts are unknown.”

Counsel stated that he had “tried to correct the problem between the trial court

and this court” but that he was “not exceedingly familiar with appellate practice.”

We asked the State to respond to counsel’s letter. In the State’s response,

it represented that a prosecutor had reviewed the trial court’s file and that no

“paper copy” of a March 2018 notice of appeal appeared in the file. The State

2 also emphasized that in Madore’s letter to this court, he did not attach a copy of

the “purported March 9, 2018 hand-delivered notice of appeal.”

A timely notice of appeal is essential to our jurisdiction; without a timely

notice of appeal or a timely motion for extension of time to file the notice of

appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(b), 26.2(a),

26.3(b); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

To the extent that Madore relies on the purported March 2018 “paper copy”

to contend that he timely filed a notice of appeal, such a notice of appeal does

not appear in the trial court’s record, nor has Madore supplied a replica of the

“paper copy” to this court. Furthermore, the parties have not stipulated that

Madore filed that document in March 2018, nor has Madore filed a motion for the

trial court to determine whether that document was filed but has been lost. See

Tex. R. App. P. 34.5(e). Thus, we conclude that we cannot predicate our

jurisdiction on Madore’s unsworn representation that he filed a notice of appeal in

March 2018.

We must therefore determine the effect of Madore’s May 10, 2018 notice

of appeal. As explained above, that notice of appeal was one day late, and

although Madore filed it within the time for filing a motion for the extension of time

to file a notice of appeal, he did not file such a motion. See Tex. R. App. P.

26.3(b). Under these circumstances, the notice of appeal was insufficient to

invoke our jurisdiction. See Tex. R. App. P. 25.2(b), 26.2(a)(2), 26.3(b); Olivo v.

State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (“When a notice of appeal,

3 but no motion for extension of time, is filed within the fifteen-day period, the court

of appeals lacks jurisdiction to dispose of the purported appeal in any manner

other than by dismissing it for lack of jurisdiction.”); see also Curtale v. State, No.

02-16-00256-CR, 2016 WL 5845929, at *1 (Tex. App.—Fort Worth Oct. 6, 2016,

no pet.) (mem. op., not designated for publication) (“Because appellant’s notice

of appeal was one day late and because he did not file a motion to extend the

time for filing the notice of appeal, we dismiss the appeal for want of

jurisdiction.”).

For these reasons, we dismiss this appeal for want of jurisdiction.

/s/ Wade Birdwell WADE BIRDWELL JUSTICE

PANEL: SUDDERTH, C.J.; WALKER and BIRDWELL, JJ.

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

DELIVERED: July 19, 2018