Clifton Ray Beaty v. The State of Texas--Appeal from 282nd District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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CLIFTON RAY BEATY, ) No. 08-04-00154-CR

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Appellant, ) Appeal from

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v. ) 282nd District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F03-56063-NS)

MEMORANDUM OPINION

Clifton Ray Beaty attempts to appeal his conviction for driving while intoxicated, enhanced by two prior DWI convictions and two prior felony convictions. Finding that Appellant has not timely filed his notice of appeal or a motion for extension of time, we dismiss the appeal.

The record before us reflects that sentence was imposed in open court on March 30, 2004. Appellant did not file a motion for new trial. On May 6, 2004, the District Clerk of Dallas County filed Appellant s handwritten notice of appeal. Appellant mailed the notice of appeal, which is dated April 8 and is in the form of a letter to the trial court judge, in an envelope addressed to the trial court. That envelope bears a postmark of April 9, 2004. By letter dated June 29, 2004, we notified in Appellant in writing of our intent to dismiss this appeal for want of jurisdiction. Appellant s counsel filed a letter in which she maintains that the notice of appeal is timely filed under the mail box rule provision of Tex.R.App.P. 9.2.

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). Appellant s notice of appeal was due to be filed with the Dallas County District Clerk on April 25, 2004, thirty days after the day sentence was imposed in open court. See Tex.R.App.P. 25.2(c)(1), 26.2(a)(1). Pursuant to Rule 26.3, a court of appeals may grant an extension of time to file notice of appeal if the 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 the extension of time. Tex.R.App. P. 26.3; Olivo, 918 S.W.2d at 522.

Rule 9.2(b) of Rules of Appellate Procedure provides that a document received within ten days after the filing deadline is considered timely filed if (A) it was sent to the proper clerk by the United States Postal Service first-class, express, registered, or certified mail; (B) it was placed in an envelope or wrapper properly addressed and stamped; and (C) it was deposited in the mail on or before the last day for filing. Tex.R.App.P. 9.2(b)(A)-(C). The envelope is not addressed to the Dallas County District Clerk, but is instead addressed to the trial court judge and bears the address of the 282nd District Court in the Frank Crowley Building. Further, the notice of appeal was not received by the District Clerk within ten days of the filing deadline. Consequently, Appellant failed to invoke the provisions of Rule 9.2(b). Because Appellant did not file his notice of appeal until May 6, 2004, 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.

August 19, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)