Gary Keith Butler v. The State of Texas--Appeal from 2nd District Court of Cherokee County

  NO. 12-07-00372-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GARY KEITH BUTLER, APPEAL FROM THE SECOND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

This appeal is being dismissed for want of jurisdiction. Appellant was convicted of burglary of a habitation. Sentence was imposed on August 7, 2007.

Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. Tex. R. App. P. 26.2(a)(1). Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. Tex. R. App. P. 26.2(a)(2). Appellant did not file a motion for new trial. Therefore, his notice of appeal was due to have been filed on or before September 6, 2007. However, Appellant did not file his notice of appeal until September 20, 2007 and did not file a motion for extension of time to file his notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3.

On October 4, 2007, this court notified Appellant, pursuant to Rules 26.2 and 37.2, that the clerk s record did not show the jurisdiction of this court, and it gave him until October 15, 2007 to correct the defect. In response, Appellant filed a motion to extend the time for filing his notice of appeal. Texas Rule of Appellate Procedure 26.3 provides that a motion for extension of time to file a notice of appeal must be filed within fifteen days of the deadline for filing the notice of appeal. Tex. R. App. P. 26.3. Accordingly, Appellant was required to file his motion on or before September 21, 2007. However, the motion was not filed until October 16, 2007 and therefore was untimely. See id.

Because this court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Accordingly, the appeal is dismissed for want of jurisdiction.

Opinion delivered October 24, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)