Gerardo Carrillo v. The State of Texas--Appeal from Co Crim Ct at Law No 8 of Harris County
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Opinion issued July 21, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00495-CR
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GERARDO CARRILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Case No. 5515
MEMORANDUM OPINION
In August 2007, a municipal court found Gerardo Carrillo guilty of failing to
yield the right of way as a pedestrian, causing an accident between two cars. The
court entered judgment against Carrillo for $242, consisting of a $200 fine and $42
in court costs. Carrillo filed a motion for new trial, which the municipal court
denied on January 23, 2008. Eight days later, Carrillo appealed to county criminal
court at law number eight. See TEX. GOV’T CODE ANN. § 30.00014(a) (West Supp.
2009). The county criminal court affirmed the municipal court’s judgment on
September 4, 2008. Carrillo did not file a motion for new trial in the county
criminal court. On May 22, 2011, over two and a half years after the county
criminal court’s judgment, Carrillo filed a notice of appeal from the judgment. See
TEX. GOV’T CODE ANN. § 30.00027 (West Supp. 2009); TEX. CODE CRIM. PROC.
ANN. art. 4.03 (West Supp. 2009).
Generally, a defendant in a criminal case must file his notice of appeal
within thirty days of the date of the appealed judgment, or if a motion for new trial
is filed, within ninety days of the judgment. TEX. R. APP. P. 26.2(a). There is,
however, a document in the record in which Carrillo asserts that he did not receive
notice of the county criminal court’s judgment until May 11, 2011. Rule 4.2 of the
Texas Rules of Appellate Procedure allows for additional time to file a notice of
appeal when a party does not receive timely notice of a judgment. TEX. R. APP. P.
4.2. Under Rule 4.2, Carrillo’s deadline for filing a notice of appeal did not begin
to run from the date of the county criminal court’s judgment if Carrillo did not
receive notice, or have actual knowledge, of the judgment within twenty days of
the date the judgment was signed. Id. 4.2(a)(1). Instead, Carrillo’s time period for
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filing his notice of appeal would run from the date on which he received notice, or
acquired actual knowledge, of the judgment, except that ―in no event may the
period begin more than 90 days after the judgment or order was signed.‖ Id. Thus,
even if we assume that Carrillo did not have notice or knowledge of the county
criminal court’s judgment until May 2011, the deadline for Carrillo to timely file a
notice of appeal expired in January 2009—thirty days after the ninetieth day from
the date the judgment was signed. Id. 4.2(a)(1), 26.2(a)(1).
A timely notice of appeal is essential to this Court’s jurisdiction. See Slaton
v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Because Carrillo’s notice of
appeal was filed more than two and a half years after the date of the judgment from
which he appeals, it was not timely, and we do not have jurisdiction over this
appeal. See Swain v. State, 319 S.W.3d 878, 880 (Tex. App.—Fort Worth 2010, no
pet.) (dismissing untimely appeal from county court at law’s judgment); Garza v.
State, No. 14–06–00595–CR, 2006 WL 2075147, at *1 (Tex. App.—Houston
[14th Dist.] July 27, 2006, no pet.) (same); Sharp v. State, No. 05-04-00022-CR,
2004 WL 60770, at *1 (Tex. App.—Dallas Jan. 14, 2004, no pet.) (same). We
dismiss this appeal for lack of jurisdiction.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.4.
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