Christopher Shaun Herron v. The State of Texas--Appeal from 363rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Christopher Shaun Herron

Appellant

Vs. No. 11-03-00156-CR B Appeal from Dallas County

State of Texas

Appellee

This is an appeal from a judgment revoking appellant=s community supervision. On November 22, 2002, the trial court sentenced appellant to confinement for five years for his unauthorized use of a motor vehicle conviction. A motion for new trial was timely filed; however, a notice of appeal was not filed until March 17, 2003, 115 days after the date the sentence was imposed. We dismiss the appeal for want of jurisdiction.

After reviewing the clerk=s record, the clerk of this court notified the parties in writing that it appeared that the notice of appeal was untimely and requested that appellant show grounds for continuing the appeal. Appellant has responded by filing a motion to extend time to file notice of appeal. In the motion, counsel explains that appellant did not have the benefit of counsel until after the original deadline for perfecting an appeal had past. Counsel also attaches a copy of a pro se motion appellant filed in the trial court entitled AFirst Motion for Extension of Time in Which to File Appellant=s Brief.@ Counsel argues that this motion shows appellant=s desire to appeal and that, while there is no date or file mark on the copy of the motion, the motion was sent to the trial court on February 27, 2003.

Pursuant to TEX.R.APP.P. 26.2(a)(2), appellant=s notice of appeal was due to be filed on or before February 20, 2003, 90 days after the date of sentencing. In order to extend the time for perfecting an appeal, appellant was required to file a motion for extension of time in the appellate court and to file the actual notice of appeal with the clerk of the trial court on or before March 7, 2003. TEX.R.APP.P. 26.3; Olivo v. State, 918 S.W.2d 519 (Tex.Cr.App.1996); Rodarte v. State, 860 S.W.2d 108 (Tex.Cr.App.1993). Appellant filed his notice of appeal on March 17, 2003, 115 days after the date the sentence was imposed, and his motion for extension of time on May 23, 2003, 153 days after the date the sentence was imposed. The record also reflects that appellate counsel was appointed on March 17, 2003, the same day the notice of appeal was filed.

Absent a timely notice of appeal or compliance with Rule 26.3, this court lacks jurisdiction to entertain an appeal. Slaton v. State, 981 S.W.2d 208 (Tex.Cr.App.1998); Olivo v. State, supra; Rodarte v. State, supra; Shute v. State, 744 S.W.2d 96 (Tex.Cr.App.1988). Appellant may be able to secure an out-of-time appeal by filing a postconviction writ pursuant to TEX. CODE CRIM. PRO. ANN. art. 11.07 (Vernon Supp. 2003).

The motion is overruled, and the appeal is dismissed for want of jurisdiction.

PER CURIAM

May 29, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.