Damon Earl Lewis v. The State of Texas--Appeal from 8th District Court of Hopkins County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00133-CR
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DAMON EARL LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th Judicial District Court
Hopkins County, Texas
Trial Court No. 0216856
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Damon Earl Lewis attempts to appeal his conviction for aggravated sexual assault of a child and indecency with a child. Lewis was convicted by a jury and sentenced to ninety-nine years' imprisonment for aggravated sexual assault and twenty years' imprisonment for indecency with a child. The issue before us is whether Lewis timely filed his notice of appeal. We conclude he did not and dismiss the attempted appeal for want of jurisdiction.

On the issue of whether Lewis timely perfected his appeal, the record establishes: (1) Lewis' sentence was imposed in open court on December 11, 2002; (2) Lewis filed a motion for new trial on December 16, 2002; and (3) Lewis' notice of appeal was not filed until July 1, 2003.

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 a notice of appeal must be filed by a defendant in order to perfect an 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. A court of appeals may consider a late notice of appeal timely to invoke 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. Here, none of the criteria listed above were met in the filing of Lewis' notice of appeal.

When a defendant appeals from a conviction in a criminal case, the time to file a 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 Lewis to timely file his notice of appeal was March 11, 2003, ninety days after the day sentence was imposed in open court. See Tex. R. App. P. 26.2(a)(1). Because Lewis did not file his notice of appeal until July 1, 2003, he failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: August 13, 2003

Date Decided: August 14, 2003

 

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