Annette Dean v. State ( 2007 )

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

ANNETTE DEAN, Appellant, v. THE STATE OF TEXAS, Appellee.	§ § § § § §	No. 08-07-00026-CR Appeal from 384th District Court of El Paso County, Texas (TC # 20030D02350)

MEMORANDUM OPINION  

Pending before the Court is Appellant's motion for an out-of-time appeal. Finding that Appellant has not timely filed her notice of appeal or a motion for extension of time, we dismiss the appeal.

A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Notice of appeal must be filed within thirty days after sentence is imposed or suspended in open court or after the day the trial court enters an appealable order; or within ninety days after sentence is imposed or suspended in open court if the defendant timely files a motion for new trial. Tex.R.App.P. 26.2. Pursuant to Rule 26.3, a court of appeals may grant an extension of time to file notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time. Tex.R.App.P. 26.3; Olivo, 918 S.W.2d at 522. A motion for new trial is due to be filed no later than thirty days after the trial court imposes or suspends sentence is open court. Tex.R.App.P. 21.4.

The trial court's judgment reflects that before us reflects that sentence was imposed in open court on December 13, 2006. In order to extend the time for filing her notice of appeal, Appellant's motion for new trial was due to be filed no later than January 12, 2007. See Tex.R.App.P. 21.4(a). However, she did not file it until January 17, 2007. Consequently, her notice of appeal was due to be filed by January 12, 2007. Appellant filed notice of appeal on January 17, 2007, five days after the due date. Although Appellant filed her notice of appeal within the fifteen day period specified by Rule 26.3, she did not file a motion for extension of time in which to file notice of appeal until February 1, 2007, more than fifteen days after the last day for filing notice of appeal. 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. Olivo, 918 S.W.2d at 522. Accordingly, we deny Appellant's motion for an out-of-time appeal and dismiss the appeal for want of jurisdiction.

April 19, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)