Benito Perez v. The State of Texas--Appeal from 240th District Court of Fort Bend County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BENITO PEREZ, )

) No. 08-04-00211-CR

Appellant, )

) Appeal from the

v. )

) 240th District Court

THE STATE OF TEXAS, )

) of Fort Bend County, Texas

Appellee. )

) (TC# 33,639)

)

MEMORANDUM OPINION

This is an attempted appeal from a judgment revoking probation and imposing a sentence of 10 years= and 1 month confinement. The issue before this Court is whether Appellant timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

In this case, the trial court render its judgment and imposed the sentence on March 31, 2004. Appellant filed a notice of appeal on June 1, 2004, sixty-one days after the trial court=s judgment imposing the sentence.

A timely notice of appeal is necessary to invoke the jurisdiction of this Court. 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.

Therefore, a defendant=s notice of appeal is timely if filed within thirty days after the day the trial court enters an appealable order. Tex.R.App.P. 26.2(a); Olivo, 918 S.W.2d at 522. Rule 26.3 allows for an exception: The appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party; (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b), reasonably explaining the need for the extension of time. Tex.R.App.P. 26.3; Tex.R.App.P. 10.5(b)(2). A late notice of appeal may be considered timely so as to invoke the appellate court=s 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 appellate court within fifteen days of the last day allowed for filing the notice of appeal; and (3) the appellate court grants the motion for extension of time. Olivo, 918 S.W.2d at 522.

The last date allowed for timely filing of the notice of appeal was April 30, 2004, thirty days after the day the trial court entered the sentence. Tex.R.App.P. 26.2(a)(1). Appellant did not file his notice of appeal until June 1, 2004 and failed to file a motion for extension of time. Therefore, Appellant failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

September 2, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

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

(Do Not Publish)