Timothy Wayne Bain v. State

• Court: Court of Appeals of Texas
• Decided: May 24, 2007
• Docket: 13-07-00180-CR
• Status: Published

Opinion

NUMBER 13-07-180-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

_______________________________________________________

TIMOTHY WAYNE BAIN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Garza, and Benavides

Memorandum Opinion Per Curiam

Appellant, Timothy Wayne Bain, attempts to appeal his conviction for felony criminal mischief. We are without jurisdiction to entertain this appeal.

Appellant was sentenced on January 29, 2007. Appellant, proceeding pro se, gave written notice of appeal on February 27, 2007, and said notice was received by the district clerk's office on March 5, 2007. Counsel for appellant then filed with the trial court (1) a motion for extension of time to file notice of appeal and (2) a motion for leave to file notice of appeal out of time.

A timely notice of appeal is required to invoke our jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The notice of appeal is timely if filed within thirty days after the sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant files a motion for a new trial. Tex. R. App. P. 26.2(a); see Olivo, 918 S.W.2d at 522.

We may consider a late notice of appeal where (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for an extension of time is filed within the fifteen days, and (3) we grant the motion. See Tex. R. App. P. 26.3; see also Olivo, 918 S.W.2d at 522. If the notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, we lack jurisdiction over the appeal. Olivo, 918 S.W.2d at 522. Rule 26.3 states:

Extension of Time. The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party:

(a) files in the trial court the notice of appeal; and

(b) files in the appellate court a motion complying with Rule 10.5(b).

TEX. R. APP. P. 26.3 (emphasis added). This rule expressly provides that the motion for extension of time must be filed in the court of appeals. See Moreno v. State, 954 S.W.2d 97, 98 (Tex. App.-San Antonio 1997, no pet.) (decided under former Rule 41(b)(2), which contains similar language to Rule 26.3); Jones v. State, 900 S.W.2d 421, 422 (Tex. App.-Texarkana 1995, no pet.) (same). Where the motion for extension of time is filed in the trial court, the appellate court lacks jurisdiction over the appeal. See Moreno, 954 S.W.2d at 98; Jones, 900 S.W.2d at 423; see also Slaton, 981 S.W.2d at 209-10; Olivo, 918 S.W.2d at 522.

In the instant case, the motion for extension of time to file the notice of appeal was filed with the trial court rather than the appellate court. Accordingly, the appeal is DISMISSED for lack of jurisdiction. ⁽¹⁾

PER CURIAM

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 24th day of May, 2007.

1. The procedures for pursuing an out-of-time appeal are delineated in article 11.07 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); see also Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996).