Worsham, Brandon Wayne v. The State of Texas--Appeal from 263rd District Court of Harris County

Dismissed and Opinion filed October 10, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00940-CR

____________

BRANDON WAYNE WORSHAM, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 885,122

M E M O R A N D U M O P I N I O N

Appellant entered a guilty plea, without an agreed recommendation as to punishment, to the offense of sexual assault of a child. On July 26, 2002, appellant was sentenced to confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice. Appellant=s pro se notice of appeal was not filed until August 28, 2002.[1]

To invoke an appellate court=s jurisdiction over an appeal, an appellant must give timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial. See Tex. R. App. P. 26.2(a)(1). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances, it can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

On September 23, 2002, notice of the Court=s intention to dismiss the appeal for want of jurisdiction was transmitted to the parties. On September 27, 2002, appellant=s appointed counsel filed a motion for extension of time to file the notice of appeal. In the motion, counsel asserts that he was not appointed to represent appellant until September 4, 2002, and appellant=s notice of appeal was filed untimely due to a miscommunication with appellant=s former counsel.

A motion for extension of time to file the notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. Tex. R. App. P. 26.3. Appellant=s notice of appeal was due August 26, 2002.[2] The motion for extension of time, filed thirty-two days later, is untimely. The Court of Criminal Appeals has held:

When a notice of appeal, but no motion for extension of time, is filed within the fifteen day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction.

Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). The court held that a court of appeals could not utilize the rule suspension provision of former rule 2(b)[3] or former rule 83[4] to obtain jurisdiction, even though the Texas Supreme Court has followed a more liberal policy. Id. at 523 24; cf. Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (holding that a motion for extension of time was implied when a party, acting in good faith, filed an instrument to perfect an appeal within the 15 day period permitted by former rule 41(a)(2) for filing an extension). The decision in Olivo was unchanged by the revisions to the Texas Rules of Appellate Procedure. Slaton, 981 S.W.2d at 209-10 (confirming that Athe rationale in Olivo is still valid@). Therefore, we must deny appellant=s motion for extension of time to file the notice of appeal.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed October 10, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] The record includes a copy of the envelope bearing an August 27, 2002 postmark, establishing the notice was mailed one day after its due date. Thus, appellant cannot benefit from the mailing rule. See Tex. R. App. P. 9.2(b).

[2] See Tex. R. App. P. 26.2 and Tex. R. App. P. 4.1.

[3] See now Tex. R. App. P. 2.

[4] See now Tex. R. App. P. 44.3.