Michael Pullen v. State

Opinion

Opinion issued October 1, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00968-CR ——————————— MICHAEL PULLEN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas Trial Court Case No. 1810704

MEMORANDUM OPINION

Appellant, Michael Pullen, attempts to appeal his August 24, 2012

conviction for the misdemeanor offense of driving while intoxicated. See TEX.

PENAL CODE ANN. § 49.04 (West Supp. 2012). Appellant did not file a motion for

new trial or a motion for extension of time to file his notice of appeal. See TEX. R. APP. P. 26.2(a)(2), 26.3(b); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.

1996) (requiring both notice of appeal and motion for extension to be filed within

15 days of original due date for notice of appeal). Therefore, appellant’s notice of

appeal was due on or before September 24, 2012. See TEX. R. APP. P. 26.2(a)(1).

Appellant’s pro se notice of appeal was filed-stamped in the trial-court

clerk’s office on October 2, 2012—eight days after the deadline. Nevertheless, the

notice was received by the trial court clerk within 10 days of the deadline and

therefore may have been timely filed under the “prisoner mailbox rule,” so we

notified appellant of our intent to dismiss this appeal for want of jurisdiction and

provided him with an opportunity to respond to the notice and show that his notice

was timely filed. See TEX R. APP. P. 9.2(b) (stating document is considered timely

filed if properly mailed by deadline and received by clerk within 10 days of

deadline); Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010) (“We

hold that the pleadings of pro se inmates shall be deemed filed at the time they are

delivered to prison authorities for forwarding to the court clerk.”). Further,

because appellant was represented by appointed counsel in the trial court but filed

his notice of appeal pro se, we abated the appeal for the trial court to appoint

counsel to assist appellant in responding to our notice. See TEX. CODE CRIM.

PROC. ANN. arts. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp. 2012).

2 On August 6, 2013, the trial court appointed the Harris County Public

Defender’s Office to represent appellant. On August 27, 2013, appellant filed an

affidavit in the trial court, stating that he has had an opportunity to confer with

counsel, Nicolas Hughes, that he has no proof that he timely mailed his notice of

appeal pursuant to the “prisoner mailbox rule,” that he “wish[es] to dismiss [his]

appeal so [he] can seek an out-of-time appeal by means of application for writ

habeas corpus [sic],” and that he “knowingly and voluntarily dismiss[es] [his]

appeal, with the understanding that [he] did not file [his] notice of appeal on time.”

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

essential to vest this court with jurisdiction. See Slaton v. State, 981 S.W.2d 208,

210 (Tex. Crim. App. 1998). The court of criminal appeals has expressly held that

without a timely filed notice of appeal we cannot exercise jurisdiction over an

appeal. See Olivo, 918 S.W.2d at 522; see also Slaton, 981 S.W.2d at 210.

Because appellant’s notice of appeal was untimely, we have no basis for

jurisdiction over this appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at

523.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss all pending motions as moot. We direct the Clerk to

issue the mandate within 10 days of the date of this opinion. See TEX. R. APP. P.

18.1.

3 PER CURIAM Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).