Ronald Smock v. The State of Texas--Appeal from 238th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RONALD SMOCK,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00441-CR

Appeal from the

238th District Court

of Midland County, Texas

(TC# CR27049)

OPINIONON DISMISSAL FOR WANT OF JURISDICTION

In this case, Ronald Smock attempts to appeal his conviction for burglary of a habitation. The issue before us is whether appellant timely filed his notice of appeal. We conclude that he did not and dismiss his attempted appeal for want of jurisdiction.

The trial court imposed sentence in open court on August 23, 2002. No motion for new trial was filed. Appellant filed his notice of appeal on September 24, 2002.

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). Tex. R. App. P. 26.2(a) prescribes the time period in which notice of appeal must be filed by the defendant in order to perfect appeal in a criminal case:

(a) By the Defendant. The notice of appeal must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or

(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

Tex. R. App. P. 26.2(a). Therefore, a defendant=s notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court. See Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. Under Rule 26.3, a late notice of appeal may be considered timely so as to invoke a court of appeals= 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.

When a defendant appeals from a conviction in a criminal case, the time to file 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. See Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993); George v. State, 883 S.W.2d 250, 251 (Tex. App.--El Paso 1994, no pet.); Reyes v. State, 883 S.W.2d 291, 292 (Tex. App.--El Paso 1994, no pet.). September 22, 2002 was thirty days after the day the sentence was imposed in open court; as that was a Sunday, notice of appeal would have been timely if filed on the following Monday, September 23, 2002. See Tex. R. App. P. 26.2(a)(1); Tex. R. App. P. 4.1(a). Smock did not file until the next day, Tuesday, September 24. Moreover, he failed to file a motion for extension of time pursuant to Rule 26.3.

Conclusion

Because appellant did not file his notice of appeal until September 24, 2002, and he failed to file a motion for extension of time, he failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

SUSAN LARSEN, Justice

November 7, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)