Ronald Dunbar v. The State of Texas--Appeal from 87th District Court of Freestone County

IN THE

TENTH COURT OF APPEALS

No. 10-97-112-CR

RONALD DUNBAR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 87th District Court

Freestone County, Texas

Trial Court No. 90-083-CR

MEMORANDUM OPINION

According to the appellant, Ronald Dunbar, on June 6, 1991, his probation was revoked on an underlying conviction for aggravated assault that had been issued eleven months earlier. See Tex. Penal Code Ann. 22.02(a)(1) (Vernon 1994). The trial court, as a result of its order revoking Dunbar's probation, sentenced him to ten years' incarceration in the Texas Department of Criminal Justice-Institutional Division.

On March 17, 1997, Dunbar filed a "Motion to File an Out of Time Appeal," which we will construe as a motion to extend the time to file his notice of appeal. On the same date we received Dunbar'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. See Tex. R. App. P. 41(b). In a response filed March 27, 1997, Dunbar requested that we extend the time for him to perfect his appeal because the reason for its untimeliness was the ineffectiveness of his trial counsel. 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). Although it is not apparent in the documents submitted to us by Dunbar, we will assume that he filed a motion for new trial and that, as a consequence, his notice of appeal was due September 4, 1991.

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).

Dunbar filed his motion to extend the time to file his notice of appeal on March 17, 1997. By operation of Rule 41(b)(2), his motion for extension was due in this court on September 19, 1991. 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, Dunbar'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. Dunbar 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.

The cause is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Chief Justice McDonald (Retired)

Dismissed for want of jurisdiction

Opinion delivered and filed April 9, 1997

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