Lennardo Payne v. State

• Court: Court of Appeals of Texas
• Decided: March 1, 2019
• Docket: 05-19-00180-CR
• Status: Published

Opinion

DISMISS and Opinion Filed March 1, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00180-CR

LENNARDO PAYNE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F18-76428-P

MEMORANDUM OPINION Before Justices Whitehill, Molberg, and Reichek Opinion by Justice Reichek Before the Court is Lennardo Payne’s February 19, 2019 motion for extension of time to

file his notice of appeal. Following his open plea of guilty, appellant was convicted, on November

13, 2018, of theft of an automated teller machine and its contents valued at less than $300,000.

Appellant then filed his notice of appeal on February 8, 2019.

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). 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, both the notice of appeal and a motion to extend the time to file the notice of appeal. 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. Ex parte Castillo, 369 S.W.3d 196, 198 (Tex. Crim.

App. 2012); Slaton v. State, 981S.W.2d 208, 210 (Tex. Crim. App. 1998).

In this case, the trial court entered judgment on November 13, 2018. Appellant did not file

a motion for new trial; therefore, his notice of appeal was due on December 13, 2018. Any motion

to extend the time to file the notice of appeal would have been due on or before December 28,

2018. Appellant filed his notice of appeal on February 8, 2019 and a motion to extend time to file

the same on February 19, 2019. Both the notice of appeal and extension motion were untimely.

Under these circumstances, we must dismiss this appeal for want of jurisdiction.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 190180F.U05

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

LENNARDO PAYNE, Appellant On Appeal from the 203rd Judicial District Court, Dallas County, Texas No. 05-19-00180-CR V. Trial Court Cause No. F18-76428-P. Opinion delivered by Justice Reichek, THE STATE OF TEXAS, Appellee Justices Whitehill and Molberg participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered March 1, 2019

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