Francisco M. Rodriguez v. State ( 2010 )

NO. 07-10-0094-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 26, 2010
______________________________
FRANCISCO M. RODRIGUEZ, JR.,
Appellant
v.
THE STATE OF TEXAS
Appellee
_________________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-420,828; HON. CECIL PURYEAR, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Francisco M. Rodriguez, Jr. (appellant) appeals his conviction for aggravated sexual assault. By letter dated April 5, 2010, we informed him that his notice of appeal was untimely. We also afforded him until April 15, 2010, to provide us with any information he could to assist us in determining whether we had jurisdiction over the appeal. In response, appellant moved for an extension of time to file his notice of appeal. We dismiss the appeal for want of jurisdiction.
To be timely, a notice of appeal must be filed within 30 days after the sentence is imposed or suspended in open court or within 90 days after that date if a motion for new trial is filed. Tex. R. App. P. 26.2(a). In the case at bar, appellant was sentenced on October 27, 2009. The latest date upon which the notice could have been timely filed at bar, assuming that a motion for new trial was filed properly, approximated January 25, 2010. However, appellant filed his notice on March 30, 2010. Thus, it was late. Furthermore, the time to seek an extension of the deadline lapsed as well. Tex. R. App. P. 26.3 (allowing for the extension of time to file a notice of appeal, "if within 15 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))."
A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If it is untimely, we can take no action other than to dismiss the proceeding. Id. at 523. Appellant's notice and motion to extend time to file notice being untimely, we have no jurisdiction over the matter, deny the requested extension, and dismiss the appeal.
Accordingly, appellant's appeal is dismissed.
Brian Quinn
Chief Justice
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