Paul Amaro v. The State of Texas--Appeal from 220th District Court of Hamilton County

IN THE

TENTH COURT OF APPEALS

No. 10-97-034-CR

PAUL AMARO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court # 6776

MEMORANDUM OPINION

On September 5, 1995, Paul Amaro pled guilty to bail jumping and failure to appear. See Tex. Penal Code Ann. 38.10 (Vernon 1994). Pursuant to an agreement between the State and Amaro, the court sentenced him on October 3, 1995, to an enhanced punishment of twenty years' incarceration in the Texas Department of Criminal Justice-Institutional Division. See id. 12.42 (Vernon 1994 & Supp. 1997). A transcript was received by this court on February 21, 1997.

Some months after the final judgment was filed, Amaro apparently requested the trial court to provide him with free counsel so that he could appeal the conviction. According to Amaro, the trial court refused, and Amaro then made the same request to this court on at least two occasions. Each time the request was made, we informed Amaro by letter that we have no authority to appoint counsel. After more correspondence, Amaro ultimately filed in this court on January 23, 1997, a "Motion to File an Out of Time Appeal." On the same date we received Amaro's motion, we notified him by letter that we may dismiss his cause for want of jurisdiction unless within ten days he demonstrated sufficient grounds for continuing the appeal. Amaro responded with a "Motion to Extend Time to File Grounds For Continuing Appeal" that was postmarked January 31, 1997. We will deny both (1) the motion to file an out of time appeal and (2) the motion to extend the time to demonstrate sufficient grounds for continuing the appeal. We will dismiss the cause for want of jurisdiction.

A timely notice of appeal is necessary to invoke a court of appeal's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). To be timely, a notice of appeal must be filed within thirty days after the sentence is imposed, or within ninety days if a timely motion for new trial is filed. See Tex. R. App. P. 41(b)(1). On October 3 Amaro filed in the trial court a waiver of his right to file a motion for new trial; therefore, his notice of appeal was due November 2, 1995.

Provision is made in the appellate rules for the untimely filing of a notice of appeal. Rule 41(b)(2) provides that "[a]n extension of time for filing notice of appeal may be granted by the court of appeals if such 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 such extension." Id. 41(b)(2).

Amaro filed his motion to extend the time to file his notice of appeal on January 23, 1997. By operation of Rule 41(b)(2), his motion for extension was due in this court on November 17, 1995. This court has no authority to grant an untimely motion to extend the time to file a notice of appeal. Olivo, 918 S.W.2d at 522. Therefore, Amaro's motion to file an out of time appeal is denied.

Without a timely filed notice of appeal, or a timely filed motion to extend the time to file a notice of appeal, the appellate court has no jurisdiction over an appeal. Id. at 522-23. Amaro has not filed a notice of appeal, and as held above, his motion to extend the time to file a notice of appeal is untimely. Therefore, this court has no jurisdiction over his appeal, and it must be dismissed.

On January 23, 1997, we gave notice to Amaro that we may dismiss his appeal for want of jurisdiction unless within ten days he provided sufficient grounds for continuing it. He responded in a motion postmarked eight days later requesting more time in which to reply. We gave Amaro an opportunity to provide this court with authority for why his appeal should not be dismissed, but he has thus far failed to do so. Moreover, the authority on the subject of this court's authority to act upon an untimely motion to extend the time to file a notice of appeal is recent and exceedingly clear. Nothing could be gained by granting Amaro's request for an extension of time in which to respond to our January 23 letter; therefore, his motion is denied.

As a final item, Amaro's motion for the assignment of counsel filed on January 23, 1997, is dismissed as moot.

Amaro's motion to file an out of time appeal is denied; his motion to extend the time in which to demonstrate sufficient grounds for continuing the appeal is denied; his motion for the appointment of counsel is dismissed as moot; and the cause is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Motion to file out of time appeal denied

Motion to extend time to demonstrate sufficient grounds for continuing appeal denied

Motion for appointment of counsel dismissed as moot

Dismissed for want of jurisdiction

Opinion delivered and filed March 5, 1997

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