Joseph Rubio v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSEPH FRANK RUBIO, )

) No. 08-02-00470-CR

Appellant, )

) Appeal from the

v. )

) 210th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20000D01249)

)

MEMORANDUM OPINION

This is an appeal from a judgment of conviction for the offense of theft by deception. On October 19, 2000, Joseph Frank Rubio pled guilty and the court deferred adjudication of guilt and placed Appellant on community supervision for 5 years. On June 28, 2001, the State filed a motion to adjudicate guilt, alleging that Appellant violated the terms of his community supervision. On September 20, 2002, the trial court entered a judgment revoking probation and sentenced Appellant to confinement in state jail for 22 months. The issue before us is whether Appellant timely filed his notice of appeal. We conclude that he did not and dismiss the appeal for want of jurisdiction.

The record reflects that the trial court imposed sentence on September 20, 2002. Appellant did not file a motion for new trial. Appellant filed a notice of appeal on October 25, 2002, thirty-five days after the imposition of the sentence.

A timely notice of appeal is necessary to invoke the jurisdiction of this Court. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Tex.R.App.P. 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) By the Defendant. The notice of appeal must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or

(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

Therefore, a defendant=s notice of appeal is timely if filed within thirty days after the day sentenced 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. Rule 26.3 allows for an exception: The appellate court may extend the time to file the notice of appeal if, within fifteen 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), reasonably explaining the need for the extension of time. Tex.R.App.P. 26.3; Tex.R.App.P. 10.5(b)(1)(C). Under Rule 26.3, a late notice of appeal may be considered timely so as to invoke the appellate court=s 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 appellate court within fifteen days of the last day allowed for filing the notice of appeal, and (3) the appellate court 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 the sentence is signed and entered by the trial court. Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Crim.App. 1993); George v. State, 883 S.W.2d 250, 251 (Tex.App.--El Paso 1994, no pet.); Reyes v. State, 883 S.W.2d 291, 292 (Tex.App.--El Paso 1994, no pet.). The last date allowed for timely filing of the notice of appeal was October 20, 2002, thirty days after the day the sentence was imposed in open court. Tex.R.App.P. 26.2(a)(1). Appellant did not file his notice of appeal until October 25, 2002 and failed to file a motion for extension of time. Therefore, Appellant failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

January 23, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

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

(Do Not Publish)