Todd Patrick Alley v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2019
• Docket: 12-19-00003-CR
• Status: Published

Opinion

NO. 12-19-00003-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TODD PATRICK ALLEY, § APPEAL FROM THE 7TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM This appeal is being dismissed for want of jurisdiction. Todd Alley, acting pro se, filed a notice of appeal to challenge his conviction in trial court cause number 007-0722-10. Sentence was imposed on September 28, 2010. Under the rules of appellate procedure, the notice of appeal must be filed within thirty days after the sentence is imposed or within ninety days after sentence is imposed if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a). Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. TEX. R. APP. P. 26.3. In this case, Appellant filed his notice of appeal on January 2, 2019, long after the time for filing a notice of appeal under Rule 26.2(a) or for seeking a motion to extend under Rule 26.3. On January 2, 2019, this Court notified Appellant that the information received failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the time allowed by the rules of appellate procedure and no timely motion for an extension of time to file the notice of appeal. See TEX. R. APP. P. 26.2, 26.3. We informed Appellant that the appeal would be dismissed unless the information was amended on or before January 14 to show this Court’s jurisdiction. In response, Appellant states that he is incarcerated, has no access to the court, and will sue if his appeal is closed. Thus, Appellant’s response does not demonstrate this Court’s jurisdiction over his 2010 conviction. This Court is not authorized to extend the time for perfecting an appeal except as provided by the Texas Rules of Appellate Procedure.1 See TEX. R. APP. P. 26.2, 26.3; see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Accordingly, we dismiss Appellant’s appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). All pending motions are overruled as moot. Opinion delivered January 16, 2019. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

1 Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR, 2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 16, 2019

TODD PATRICK ALLEY, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-0722-10)

THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.