Seneca Llwelyn McKenzie v. State

• Court: Court of Appeals of Texas
• Decided: August 17, 2005
• Docket: 12-05-00241-CR
• Status: Published

Opinion

lee, elmer edward v. state

                     NO. 12-05-00241-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

SENECA LLWELYN MCKENZIE,                  §     APPEAL FROM THE 3RD

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §     ANDERSON COUNTY, TEXAS

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MEMORANDUM OPINION

PER CURIAM

            This appeal is being dismissed for want of jurisdiction. Appellant was convicted of delivery of a controlled substance, and sentence was imposed on February 18, 2005. Thereafter, Appellant timely filed a motion for new trial. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. Tex. R. App. P. 26.2(a)(1). Because Appellant timely filed a motion for new trial, his notice of appeal was due to have been filed on or before May 19, 2005. However, Appellant did not file his notice of appeal until May 27, 2005. Along with his notice of appeal, Appellant also filed with the trial court clerk a “Motion to File Late Appeal.”

             On August 4, 2005, this Court notified Appellant, pursuant to rules of appellate procedure 26.2 and 37.2, that the information received in this appeal did not show the jurisdiction of this Court, and it gave him until August 15, 2005 to correct the defect. On August 16, 2005, Appellant filed a sworn response stating that he delivered the notice of appeal and “Motion to File Late Appeal” to the District Clerk of Anderson County on May 27, 2005.

            Texas Rule of Appellate Procedure 26.3 permits an appellate court to extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice, the party files a notice of appeal in the trial court and files a motion for extension of time in this Court. Tex. R. App. P. 26.3(b) (emphasis added). Although Appellant filed his motion for extension of time within the 15-day period prescribed by Rule 26.3, the motion for extension of time was filed in the trial court. A motion for extension of time filed in the trial court is not effective to extend the time for filing the notice of appeal. Moreno v. State, 954 S.W.2d 97, 97 (Tex. App.–San Antonio 1997, no pet.); Jones v. State, 900 S.W.2d 421, 423 (Tex. App.–Texarkana 1995, no pet.). Therefore, because Appellant’s notice was not filed on or before May 19, 2005, his notice was untimely.

            Because this Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998). Accordingly, the appeal is dismissed for want of jurisdiction.

Opinion delivered August 17, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)