Russell Thomas Bean v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 8, 2023
• Docket: 09-23-00034-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00033-CR NO. 09-23-00034-CR __________________

RUSSELL THOMAS BEAN, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause Nos. 21-37100 and 21-37101 __________________________________________________________________

MEMORANDUM OPINION

On December 12, 2022, the trial court sentenced Russell Thomas Bean on

separate indictments for abandoning a child, but suspended imposition of the

sentences and placed Bean on community supervision. See Tex. Penal Code Ann. §

22.041; see also Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1). On January 26,

2023, Bean filed notices of appeal. We questioned whether we had jurisdiction over

the appeals. In response, on February 8, 2023, a newly appointed counsel for Bean

1 filed a motion through which Bean requests that the appeals be allowed to proceed.

Bean does not claim that he has obtained habeas relief granting him the right to file

out-of-time appeals. See generally Tex. Code Crim. Proc. Ann. art. 11.072; see also

Ex parte Hiracheta, 307 S.W.3d 323, 325 (Tex. Crim. App. 2010) (“An applicant

must file an application for writ of habeas corpus under Texas Code of Criminal

Procedure 11.072 in the trial court in which community supervision was imposed in

order to attack a judgment of conviction ordering community supervision.”).

In a criminal case, a timely notice of appeal is necessary to invoke this court’s

jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Here, the

notice of appeal was due on January 11, 2023. See Tex. R. App. P. 26.2(a)(1). A late

notice of appeal may be considered timely so as to invoke the appellate court’s

jurisdiction if it is filed within fifteen days of the last day allowed for filing, along

with a motion for extension of time which is filed with the court of appeals within

fifteen days of the last day allowed for filing the notice of appeal, and the court of

appeals grants the motion for extension of time. See Tex. R. App. P. 26.3 Here, a

motion for extension of time was due to be filed no later than January 26, 2023.

“When a notice of appeal is filed within the fifteen-day period but no timely motion

for extension of time is filed, the appellate court lacks jurisdiction.” Olivo, 918

S.W.2d at 522.

We dismiss the appeals for lack of jurisdiction. See Tex. R. App. P. 43.2(f).

2 APPEALS DISMISSED.

PER CURIAM

Submitted on March 7, 2023 Opinion Delivered March 8, 2023 Do Not Publish

Before Horton, Johnson and Wright, JJ.