Marcus Joshua v. the State of Texas

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-23-00054-CR

MARCUS JOSHUA, Appellant v.

THE STATE OF TEXAS, Appellee

From the 87th District Court Leon County, Texas Trial Court No. 21-0005CR

MEMORANDUM OPINION

Marcus Joshua appeals his conviction for capital murder (terroristic threat). See

TEX. PENAL CODE § 19.03(a)(2). Joshua’s notice of appeal was due February 13, 2023. See

TEX. R. APP. P. 26.2(a)(2). It was not filed until February 21, 2023.

By letter dated March 6, 2023, the Clerk of this Court notified Joshua that the

appeal was subject to dismissal because the notice of appeal appeared untimely. In the

same letter, the Clerk warned Joshua that the appeal would be dismissed unless, within

14 days from the date of the letter, Joshua filed a response with the Court showing

grounds for continuing the appeal. In apparent response to the Clerk’s letter, Joshua’s

Request to Accept Late Filing of Defendant's Notice of Appeal was filed with the trial court clerk on March 9, 2023. The trial court clerk, on the same date, forwarded that

request to this Court as part of a Clerk’s record.

This Court may extend the time to file a notice of appeal if within 15 days after the

deadline for filing the notice of appeal, the party files in the trial court the notice of appeal

and files in the appellate court a motion complying with Texas Rule of Appellate

Procedure 10.5(b). TEX. R. APP. P. 26.3. Joshua’s notice of appeal was filed in the trial

court within 15 days after the deadline for filing the notice of appeal. A motion, however,

was not filed in this Court. Even if we considered the request filed with the trial court as

a motion in this Court, the request was not filed within 15 days after the deadline for

filing the notice of appeal. Thus, we cannot extend the time to file Joshua’s notice of

appeal.

We have no jurisdiction of an untimely appeal, and this appeal must be dismissed.

See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (no appellate jurisdiction

where notice of appeal is untimely).

Accordingly, this appeal is dismissed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Appeal dismissed Opinion delivered and filed March 15, 2023 Do not publish [CRPM]

Joshua v. State Page 2