Smelin v. Roque v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00654-CR

Smelin V. ROQUE, Appellant

v.

The STATE of Texas, Appellee

From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2008CR8480 Honorable Philip A. Kazen Jr., Judge Presiding

PER CURIAM

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

Delivered and Filed: November 16, 2016

DISMISSED FOR WANT OF JURISDICTION

In the matter underlying this appeal, the trial court revoked Appellant’s community

supervision and imposed sentence on August 25, 2014; Appellant had thirty days to file a motion

for new trial. See TEX. R. APP. P. 21.4(a); Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App.

1993). Because Appellant did not timely file a motion for new trial, the notice of appeal was due

on September 24, 2014. See TEX. R. APP. P. 26.2(a)(1). Two years later, on September 28, 2016,

Appellant filed a request for a copy of the appellate record and the name of his appellate counsel.

We construe his request as a late-filed notice of appeal. 04-16-00654-CR

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo v.

State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely motion for new trial, a

defendant’s notice of appeal is timely filed if it is filed within thirty days after (1) the day sentence

is imposed or suspended in open court, or (2) the day the trial court enters an appealable order.

See TEX. R. APP. P. 26.2; Olivo, 918 S.W.2d at 522. In this case, the appellate record does not

show that Appellant’s notice of appeal was timely filed.

On October 12, 2016, we ordered Appellant to show cause in writing by November 1, 2016,

why this appeal should not be dismissed for want of jurisdiction. See Olivo, 918 S.W.2d at 522;

Ater, 802 S.W.2d at 243. To date, Appellant has not filed any response.

We conclude Appellant’s September 28, 2016 notice of appeal was not timely filed and did

not invoke this court’s appellate jurisdiction. We dismiss this appeal for want of jurisdiction.

DO NOT PUBLISH

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