Fain, Clifton Eugene v. The State of Texas--Appeal from 83rd District Court of Pecos County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CLIFTON EUGENE FAIN,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

'

'

'

'

'

'

No. 08-02-00221-CR

Appeal from the

83rd District Court

of Pecos County, Texas

(TC# 1573)

O P I N I O N

Clifton Eugene Fain gave notice of appeal on April 15, 2002. On May 24, the Clerk of this Court informed appellant that his notice of appeal was not timely perfected and that this Court lacked jurisdiction over the appeal. Appellant was given notice of our intent to dismiss and was given until June 3 to correct any deficiencies.

The order appellant wishes to appeal was signed February 6. Therefore, appellant was required to file his notice of appeal by March 8. See Tex. R. App. P. 26.2(a)(1). Notice was not given until April 15, however, and notice was untimely.

In response to our letter, appellant filed on June 5, a motion for out-of-time appeal. He brought the motion pursuant to Tex. R. App. P. 26.3 and 10.5(b). Such a motion would only allow this Court to extend the deadline for filing notice of appeal if it had been brought within fifteen days after the deadline to file notice of appeal, or, in this case by March 23. Thus, appellant=s motion for out-of-time appeal did not extend the deadline for giving notice of appeal, and we do not believe that appellant has given a reasonable explanation for his late notice.

The jurisdiction of this Court is invoked by giving timely and proper notice of appeal. White v. State, 61 S.W.3d 424, 427-28 (Tex. Crim. App. 2001). If jurisdiction is not properly invoked, we are without power to act. Id. at 428. Here, appellant=s notice of appeal was not timely. Therefore, we dismiss this appeal for want of jurisdiction.

SUSAN LARSEN, Justice

June 20, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)