Wesley Houston Leifeste v. State

• Court: Court of Appeals of Texas
• Decided: April 14, 2010
• Docket: 04-10-00095-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-10-00095-CR

Wesley H. LEIFESTE, Appellant

v.

The STATE of Texas, Appellee

From the 198th Judicial District Court, Mason County, Texas Trial Court No. 84548 Honorable Stephen B. Ables, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: April 14, 2010

DISMISSED FOR LACK OF JURISDICTION

A jury found Wesley H. Leifeste guilty of driving while intoxicated. On October 28, 2009,

in open court, the trial court sentenced Leifeste to 180 days in jail and a $1,000 fine, then suspended

the jail term and placed Leifeste on community supervision for twelve months. Leifeste received

the terms and conditions of his community supervision the same day.

Leifeste filed a timely motion for new trial. The deadline for filing a notice of appeal was

therefore January 26, 2010, “90 days after the day sentence [was] . . . suspended in open court.” 04-10-00095-CR

TEX . R. APP . P. 26.2(a)(2). A notice of appeal was not filed until February 1, 2010. Leifeste did not

file a motion for extension of time to file the notice of appeal. See TEX . R. APP . P. 26.3.

Because the notice of appeal in this case appeared to be untimely, we ordered Leifeste to

show cause why the appeal should not be dismissed for want of jurisdiction. Leifeste filed a

response in which he contends the notice of appeal was timely filed because the appellate timeline

did not begin to run until either November 2, 2009 (the date the judgment was signed) or November

5, 2009 (the date the judgment was filed of record). We disagree. The starting point for calculating

the timeliness of the notice of appeal in a defendant’s direct appeal from a judgment of conviction

is “the day the sentence is imposed or suspended in open court,” not the day the judgment was signed

or filed. See TEX . R. APP . P. 26.2(a); Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex. Crim. App.

1993); O’Conner v. State, 266 S.W.3d 575 (Tex. App.—Amarillo 2008, pet. ref’d).

This court does not have jurisdiction to consider an appeal that was not timely filed. 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 this appeal for want of jurisdiction.

Do not publish

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