James Thomas Curtiss v. The State of Texas--Appeal from 282nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

JAMES THOMAS CURTISS, ) No. 08-02-00420-CR

)

Appellant, ) Appeal from

)

v. ) 282nd District Court

)

THE STATE OF TEXAS, ) of Dallas County, Texas

)

Appellee. ) (TC# F02-48011-US)

O P I N I O N

This is an attempted appeal from a judgment of conviction for delivery of amphetamine. Appellant waived his right to a jury trial and entered a negotiated plea of guilty. The trial court assessed punishment in accordance with the plea bargain at a fine of $2,500 and imprisonment for a term of five years. The issue before us is whether Appellant timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

The record before us reflects that sentence was imposed in open court on July 18, 2002. Appellant did not file a motion for new trial. He filed a handwritten notice of appeal on August 29, 2002. By letter dated October 18, 2002, we notified in Appellant in writing of our intent to dismiss this appeal for want of jurisdiction.

A timely notice of appeal is necessary to invoke this Court=s jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Rule 26.2(a) prescribes the time period in which notice of appeal must be filed by the defendant in order to perfect appeal in a criminal case. A defendant=s notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex.R.App.P. 26.2(a); Olivo, 918 S.W.2d at 522. Pursuant to Rule 26.3, a court of appeals may grant an extension of time to file notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time. Tex.R.App.P. 26.3; Olivo, 918 S.W.2d at 522. Under Rule 26.3, a late notice of appeal may be considered timely so as to invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo, 918 S.W.2d at 522.

When a defendant appeals from a conviction in a criminal case, the time to file notice of appeal runs from the date sentence is imposed or suspended in open court, not from the date sentence is signed and entered by the trial court. Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Crim.App. 1993). The last date allowed for timely filing of the notice of appeal was, August 17, 2002, thirty days after the day the sentence was imposed in open court. Tex.R.App.P. 26.2(a)(1). Because Appellant did not file his notice of appeal until August 29, 2002, and he failed to file a motion for extension of time, he failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

January 9, 2003

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)