Ronald Kempel v. State ( 1998 )

Kempel v. State

IN THE

TENTH COURT OF APPEALS

No. 10-98-189-CR

     RONALD KEMPEL,

                                                                                   Appellant

     v.

     THE STATE OF TEXAS,

                                                                                   Appellee              

From the 187th District Court

Bexar County, Texas

Trial Court No. 97-CR-2237

MEMORANDUM OPINION

      The appellant, Ronald Kempel, pled nolo contendere to the offense of aggravated assault. See Tex. Pen. Code Ann. § 22.02 (Vernon 1994). On March 4, 1998, the trial court sentenced Kempel to six years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice and a $1,000 fine. Kempel has filed a late notice of appeal and a motion for extension of time to file his notice of appeal. In his motion, Kempel explains that his notice of appeal is untimely because his court-appointed attorney misinformed him regarding appellate review of his conviction.

      A timely notice of appeal is necessary to invoke a court of appeal's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). To be timely, a notice of appeal must be filed within thirty days after the sentence is imposed, or within ninety days if a timely motion for new trial is filed. See Tex. R. App. P. 26.2. There is no motion for new trial in the clerk’s record; consequently, Kempel’s notice of appeal was due within thirty days of March 4, 1998.

      Provision is made in the appellate rules for the untimely filing of a notice of appeal. Rule 26.3 allows the appellate court to extend the time for an appellant to file a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party files the notice of appeal and a motion requesting an extension of time to file the notice. Tex. R. App. P. 26.3.

      Kempel filed his notice of appeal on May 5, 1998. By operation of Rule 26.2, his notice of appeal was due no later than April 20. Without a timely filed notice of appeal, or a timely filed motion to extend the time to file a notice of appeal, we have no jurisdiction over an appeal. Olivo, 918 S.W.2d at 522-23. Therefore, with no jurisdiction over Kempel’s appeal, it must be dismissed.

      The cause is dismissed for want of jurisdiction and Kempel’s motion is denied.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Appeal dismissed for want of jurisdiction; motion denied

Opinion delivered and filed June 24, 1998

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