John Wesley Walsh v. State ( 2009 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00001-CR
______________________________
JOHN WESLEY WALSH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 14,971
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
John Wesley Walsh appeals from his verdict of burglary of a habitation. See TEX . PENAL
CODE ANN . § 30.02 (Vernon 2003). The sentence was imposed October 15, 2008. Walsh filed a
motion for new trial November 17, 2008, by hand delivering it to the District Clerk of Upshur
County. He filed his notice of appeal December 30, 2008.
Walsh had thirty days after the day sentence was imposed to file a notice of appeal, or to
timely file a motion for new trial and thereby extend his time to file a notice of appeal. See TEX . R.
APP . P. 21.4, 26.2(a)(1). The thirty days expired Friday, November 14, 2008. Walsh filed his
motion for new trial November 17, 2008, by hand delivery. It was not timely. His notice of appeal
was thus due on or before November 14, 2008, but was not filed until December 30, 2008.
A late notice of appeal invokes the appellate court's jurisdiction only if (1) it is filed within
fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court
of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court
of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App.
1996). Further, when a notice of appeal is filed within the fifteen-day period but no timely motion
for extension of time is filed, the appellate court lacks jurisdiction. Id. (citing Rodarte v. State, 860
S.W.2d 108 (Tex. Crim. App. 1993)).
The Texas Court of Criminal Appeals interprets Rule 26.3 of the Texas Rules of Appellate
Procedure strictly to require an appellant in a criminal case to file his or her notice of appeal and a
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motion for extension of time within the fifteen-day period for filing a late notice of appeal. Id. at
522–26; see TEX . R. APP . P. 26.3. The Texas Court of Criminal Appeals has expressly held that,
without a timely-filed notice of appeal or motion for extension of time, we cannot exercise
jurisdiction over an appeal. See Olivo at 522; see also Slaton v. State, 981 S.W.2d 208, 209 n.3
(Tex. Crim. App. 1998). This appeal is untimely brought, and we are without jurisdiction to hear
this case.
We dismiss this appeal for want of jurisdiction.
Jack Carter
Justice
Date Submitted: February 18, 2009
Date Decided: February 19, 2009
Do Not Publish
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