Rocky Annis v. State

Opinion

Opinion issued May 16, 2019

In The

Court of Appeals

For The

First District of Texas

court found appellant guilty, assessed his punishment at confinement for eight years, suspended the sentence, and placed appellant on community supervision for eight years. Appellant filed a pro se notice of appeal. The State has filed a motion to dismiss the appeal for want of jurisdiction. We grant the State’s motion and dismiss the appeal.

We cannot exercise jurisdiction over an appeal without a timely filed notice of appeal. See TEX. R. APP. P. 26.2(a); see also Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A defendant’s notice of appeal is timely if filed within thirty days after the date sentence is imposed or suspended in open court or within ninety days after that date if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a); see Harkcom v. State, 484 S.W.3d 432, 434 (Tex. Crim. App. 2016); Bayless v. State, 91 S.W.3d 801, 806 (Tex. Crim. App. 2002); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

Here, the trial court suspended appellant’s sentence on July 2, 2015, and signed the judgment of conviction on July 10, 2015. The record filed in this Court does not show that appellant filed a motion for new trial. See TEX. R. APP. P. 21.4(a). Appellant’s notice of appeal, therefore, was due to be filed no later than August 3, 2015. See id. 4.1, 26.2(a)(1); Olivo, 918 S.W.2d at 522. His notice of appeal, filed more than three and one-half years later, on March 27, 2019, was untimely to perfect

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an appeal, and we have no basis for jurisdiction over the appeal. See Olivo, 918 S.W.2d at 522; Lair, 321 S.W.3d at 159. In his response to the State’s motion to dismiss the appeal, appellant states that he was “victimized” and “not well” when his case was in litigation, he attempted “to gather information” to pursue an appeal, and his trial-court counsel was ineffective. However, this Court has no authority to allow the late filing of a notice of appeal except as provided by Texas Rule of Appellate Procedure 26.3. See Olivo, 918 S.W.2d at 522; Lair, 321 S.W.3d at 159. If an appeal is not timely perfected, we do not obtain jurisdiction to address the merits of the appeal and “can take no action other than to dismiss the appeal.” Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

Accordingly, we grant the State’s motion and dismiss the appeal for want of jurisdiction. We dismiss all other pending motions as moot.

PER CURIAM

Panel consists of Justices Lloyd, Landau, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).

Footnotes

1. NO. 01-19-00244-CR ——————————— ROCKY ANNIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Case No. 73315 MEMORANDUM OPINION Pursuant to an agreement with the State, appellant, Rocky Annis, pleaded guilty to the felony offense of driving while intoxicated, third offense.1 The trial 1 See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2).