Timothy Livingston v. State ( 2003 )

Timothy Livingston v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-03-033-CR

     TIMOTHY LIVINGSTON,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 95-071-CR

MEMORANDUM OPINION

      Timothy Livingston pleaded guilty to arson in December 1995. Pursuant to a plea agreement, the court deferred an adjudication of guilt and placed him on unadjudicated community supervision for three years. In 1998, the court extended Livingston’s community supervision for an additional three years. The State filed a motion to adjudicate in November 2001. The court adjudicated Livingson’s guilt and sentenced him to imprisonment for ten years and one day by judgment signed on September 23, 2002. Livingston seeks to appeal the September 23 judgment.

      Livingston timely filed a motion for new trial on October 7. Accordingly, his notice of appeal was due on Monday, December 23. See Tex. R. App. P. 26.2(a)(2).

      The notice of appeal in the clerk’s record bears a file stamp dated January 17, 2003. The certificate of service on the notice of appeal recites that Livingston served a copy of the notice on the State on September 27, 2002. However, the record contains nothing to indicate that Livingston delivered a copy of the notice to the district clerk before January 17. Id. 25.2(c)(1) (notice of appeal “must be given in writing and filed with the trial court clerk”).

      We notified Livingston by letter dated January 30 that his appeal is subject to dismissal for want of jurisdiction because his notice of appeal appears to be untimely. See Tex. R. App. P. 44.3. We informed him that he had ten days to file a response indicating grounds for continuing the appeal. He has not filed a response.

      Because Livingston did not timely file his notice of appeal, we lack jurisdiction over the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000, pet. ref’d). Accordingly, we dismiss the appeal for want of jurisdiction.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 19, 2003

Do not publish

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