Evans, Bobby Charles v. State ( 1994 )

NO. 07-94-0066-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 25, 1994
______________________
BOBBY CHARLES EVANS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
______________________
FROM THE 50TH JUDICIAL DISTRICT COURT OF COTTLE COUNTY;
NO. 2680; HONORABLE DAVID HAJEK, JUDGE
______________________
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
Appellant Bobby Charles Evans was convicted of the offense of delivery of a controlled
substance and his punishment was assessed at twenty-five (25) years confinement. Attempting to
appeal from his conviction, he has untimely filed a motion to extend the time for filing a
notice of appeal. As this court lacks jurisdiction to consider his appeal, we must overrule the
motion and dismiss the appeal.
In his extension motion, appellant states that the trial court imposed sentence on October
20, 1993. Thereafter, appellant filed a motion for new trial "on or about" December 6, 1993,
with a hearing on the motion being held on January 25, 1994. On February 10, 1994, the trial
court signed an order overruling the motion for new trial, a copy of which is attached to
appellant' s extension motion.
Pursuant to Rule 41(b)(1) of the Texas Rules of Appellate Procedure, in the absence of a
motion for new trial, an appeal is perfected by filing a notice of appeal with the trial court within
thirty (30) days after the date sentence is imposed. If a motion for new trial is timely filed, notice
of appeal shall be filed within ninety (90) days after the day sentence is imposed. Inasmuch as
a motion for new trial must also be filed within thirty (30) days after sentence is imposed, Tex.
R. App. P. 31(a)(1), appellant' s motion for new trial was untimely filed and does not serve to
extend the time for perfecting the appeal. That being the case, to be timely, it was necessary for
appellant to file his notice of appeal not later than November 21, 1993.
Even if the motion for new trial had been timely filed, and even if the trial court had not
signed the order overruling it, the motion for new trial would have been overruled by operation
of law on January 3, 1994. Tex. R. App. P. 31(e)(1)(3). Thus, even under that scenario, to be
timely, notice of appeal must have been given not later than February 2, 1994.
If the notice of appeal is not timely filed, the appellate court lacks jurisdiction over the
appeal, Rodarte v. State, 860 S.W.2d 108, 110 (Tex.Crim.App. 1993), unless the notice of appeal
and a motion for extension of time to file such notice are filed within fifteen (15) days after the
last day allowed to file the notice of appeal. Tex. R. App. P. 41(b)(2). The rule imposing the
fifteen-day limit for filing the motion for an extension of time has been, since its inception,
construed as mandatory. Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977). Therefore,
the appellate court does not have the authority to consider an extension motion tendered after the
fifteen-day limit. B. D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 861 (Tex. 1982).
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Inasmuch as appellant' s motion for extension of time for filing his notice of appeal was not
filed within fifteen (15) days after the last day allowed for its filing, no timely notice of appeal
was given. Thus, we have no jurisdiction to consider this appeal and it must be dismissed. Shute
v. State, 744 S.W.2d 96, 97 (Tex.Crim.App. 1988). That being true, appellant' s motion is moot
and must be overruled.
Accordingly, appellant' s appeal is dismissed.
John T. Boyd
Justice
Do not publish.
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