Paula Michelle Osborne v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-08-00075-CR

Paula Michelle Osborne,

Appellant

v.

The State of Texas,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F41677

MEMORANDUM Opinion

Paula Michelle Osborne appeals her conviction for theft by check of over $1500. The judgment recites that Osborne was sentenced in open court on January 11, 2008. No motion for new trial was filed. The notice of appeal was, therefore, due to be filed on February 11, 2008. Tex. R. App. P. 26.2(a)(1). Appellant s notice of appeal was not filed until February 28, 2008, 17 days late.

By letter, the Clerk of this Court notified Osborne that the appeal was subject to dismissal for want of jurisdiction because the notice of appeal appeared untimely. The Clerk also warned Osborne that her appeal may be dismissed unless, within 21 days from the date of the letter, Osborne filed a response showing grounds for continuing the appeal. Osborne filed a response on March 13, 2008 in the form of a motion for extension of time to file a notice of appeal explaining that counsel did not receive notice of his appointment as counsel until after the deadline had passed for filing the notice of appeal. However, the motion was not timely filed and does not provide us with any means to assert our jurisdiction over this appeal. See Tex. R. App. P. 26.3. A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988). Osborne s notice of appeal was not timely. We do not have jurisdiction of this appeal.

Accordingly, Osborne s motion for extension of time to file her notice of appeal is denied, and this appeal is dismissed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs with the judgment with a note) *

Appeal dismissed

Opinion delivered and filed April 30, 2008

Do not publish

[CR25]

* (Rule 26.2 is somewhat ambiguous in providing a time limit running from the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order. Tex. R. App. P. 26.2(a)(1). Appeals are taken from judgments, not sentences, so the judgment is an appealable order. Here, the judgment was signed on January 15, 2008 and a notice of appeal was filed on February 28. It would be timely if measured from the date of the judgment rather than the sentence and if we could imply a motion for extension of time in criminal cases as we do in civil appeals. See Fowler v. State, 16 S.W.3d 426, 428 (Tex. App. Waco 2000, pet. ref d) (per curiam) (discussing difference in civil and criminal requirements). Although it seems to be a waste of judicial resources, Osborne s only remedy, if any, is an application for writ of habeas corpus seeking an out-of-time appeal. See Portley v. State, 89 S.W.3d 188 (Tex. App. Texarkana 2002, no pet.) (discussing untimely appointment of counsel and remedy through habeas corpus). We should be given authority to recognize and honor good-faith attempts to perfect a direct appeal in a non-capital criminal case.)