Efren Caston v. The State of Texas--Appeal from County Court at Law No 5 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EFREN DEVOL CASTON, )

) No. 08-05-00131-CR

Appellant, )

) Appeal from the

v. )

) County Court at Law #5

THE STATE OF TEXAS, )

) of Collin County, Texas

Appellee. )

) (TC# 005-87479-03)

)

O P I N I O N

This is an attempted appeal from a conviction of a misdemeanor offense of driving while intoxicated, for which Appellant Efren Devol Caston received a sentence of 90 days= confinement and a fine of $500. The issue before this Court is whether Mr. Caston timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

The record reflects that the trial court entered its judgment and imposed its sentence on January 19, 2005. No motion for new trial was filed in this case. Mr. Caston filed a notice of appeal on February 25, 2005.

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 or after the day sentence is imposed. 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).

The last date allowed for timely filing of the notice of appeal was February 18, 2005, thirty days after the day the trial court imposed its sentence. Tex.R.App.P. 26.2(a)(1). Mr. Caston did not file his notice of appeal until February 25, 2005 and did not file a motion for extension of time. Therefore, Mr. Caston failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

June 23, 2005

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)