Brian Tolliver v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-96-110-CR

BRIAN TOLLIVER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 25,995-CR

MEMORANDUM OPINION

Brian Tolliver pleaded guilty to aggravated sexual assault and the court assessed the agreed punishment of twelve years' incarceration. Tex. Penal Code Ann. 22.021 (Vernon 1994 & Supp. 1996). Because Tolliver failed to timely file a notice of appeal, we dismiss his appeal for want of jurisdiction. Tex. R. App. P. 41(b)(1); Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex. Crim. App. 1993).

To appeal from his conviction and punishment, Tolliver must have filed a notice of appeal within thirty days "after the day sentence [was] imposed or suspended in open court" or within ninety days if a timely motion for new trial is filed. Tex. R. App. P. 41(b)(1). According to the judgment in the transcript, his sentence was imposed on February 2, 1996. He filed his notice of appeal on April 24, the eighty-second day after sentencing. There is no indication in the transcript that he filed a motion for a new trial. Thus, his notice was fifty-two days late. Id.; Rodarte, 860 S.W.2d at 109-10. He did not file a motion for an extension of time to file the notice of appeal. Tex. R. App. P. 41(b)(2); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996). Because he did not file a timely motion for a new trial and his notice of appeal was not filed within thirty days of sentencing, we do not have jurisdiction over his appeal. Tex. R. App. P. 41(b)(1); Rodarte, 860 S.W.2d at 109-10.

We notified Tolliver of this jurisdictional defect by letter on June 26. Tex. R. App. P. 83. He has responded to our notice, claiming that he was deceived by his attorney and filed the notice of appeal as soon as he uncovered the problem. This response is not sufficient to cure his tardy notice of appeal.

Thus, we dismiss this cause for want of jurisdiction. Id. 41(b)(1); Rodarte, 860 S.W.2d at 109-10.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed July 17, 1996

Do not publish