Darrell Isham v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-04-00170-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DARRELL ISHAM, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

This appeal is being dismissed for want of jurisdiction. Appellant was convicted of manufacture and delivery of a controlled substance, and sentence was imposed on February 17, 2004. Thereafter, Appellant timely filed a motion for new trial. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. Tex. R. App. P. 26.2(a)(1). Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. Tex. R. App. P. 26.2(a)(2). Since Appellant timely filed a motion for new trial, his notice of appeal was due to have been filed on or before May 17, 2004. However, Appellant did not file his notice of appeal until May 19, 2004. Moreover, Appellant did not file a timely motion for extension of time to file his notice of appeal as authorized by rule of appellate procedure 26.3.

On May 21, 2004, this Court notified Appellant pursuant to rules of appellate procedure 26.2 and 37.2, that the clerk s record did not show the jurisdiction of this Court, and it gave him until June 1, 2004 to correct the defect. This deadline has expired, and Appellant has neither responded to the Court s notice or shown the jurisdiction of this Court. Because this Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998).

The appeal is dismissed for want of jurisdiction.

Opinion delivered June 23, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 23, 2004

NO. 12-04-00170-CR

DARRELL ISHAM,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th Judicial District Court

of Smith County, Texas. (Tr.Ct.No. 241-1547-03)

THIS CAUSE came on to be heard on the transcript of the record; and the same being inspected, it is the opinion of the Court that this Court is without jurisdiction of the appeal, and that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by the Court that this appeal be, and the same is, hereby Dismissed For Want of Jurisdiction, and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

THE STATE OF TEXAS

M A N D A T E

TO THE 114TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, GREETINGS:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 23rd day of June, 2004, the cause upon appeal to revise or reverse your judgment between

DARRELL ISHAM, Appellant

NO. 12-04-00170-CR and Tr. Ct. Case Number 241-1547-03

Opinion by Per Curiam.

THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

THIS CAUSE came on to be heard on the transcript of the record; and the same being inspected, it is the opinion of the Court that this Court is without jurisdiction of the appeal, and that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by the Court that this appeal be, and the same is, hereby Dismissed For Want of Jurisdiction, and that this decision be certified to the court below for observance.

WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200_.

CATHY S. LUSK, CLERK

By:_______________________________

Deputy Clerk