Gerry G. James v. State ( 2007 )

                                                                                                        NO. 12-07-00432-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GERRY G. JAMES,  §                      APPEAL FROM THE 159TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

            This appeal is being dismissed for want of jurisdiction. Appellant was convicted of assault–family violence, and his punishment was assessed at five years of imprisonment. Sentence was imposed on October 24, 2007.

            Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed.  Tex. R. App. P. 26.2(a)(1).  Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court.  Tex. R. App. P. 26.2(a)(2).  Appellant did not file a motion for new trial. Therefore, his notice of appeal was due to have been filed on or before November 23, 2007.  However, his notice of appeal was not filed until November 29, 2007.

            On December 5, 2007, this court notified Appellant that his notice of appeal was untimely and that there was no timely motion for an extension of time to file the notice as permitted by Texas Rule of Appellate Procedure 26.3.  Appellant was further notified that the appeal would be dismissed unless the information received in the appeal was amended on or before December 17, 2007 to show this court’s jurisdiction.

            In response to this court’s notice,  Appellant’s counsel furnished documentation showing that on November 13, 2007, Appellant mailed two pro se notices of appeal in separate envelopes.  One was addressed to “Angelina County Court, P.O. Box 908, Lufkin, Texas 75902.”  The other was addressed to Angelina County Courthouse, 606 E. Lufkin Ave., Lufkin, Texas 75901.”  Both were file marked by the district clerk on November 29, 2007, sixteen days after they were mailed and six days after the filing deadline.

            A document received within ten days after the filing deadline is considered timely filed if (1) it was sent to the proper clerk by United States Postal Service first class, express, registered, or certified mail, (2) placed in an envelope or wrapper properly addressed and stamped, and (3) deposited in the mail on or before the last day for filing.  Tex. R. App. P. 9.2(b)(1).  Although the district clerk received the notices within ten days after the filing deadline, neither of the notices Appellant sent were addressed to the district clerk.  Because Appellant did not send his notices of appeal to the proper clerk, the notices cannot be considered timely filed.  Tex. R. App. P. 9.2(b)(1)(A).

            Because Appellant did not file a timely motion to extend the time for filing his notice of appeal, Tex. R. App. P. 26.3, and because this court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed.  See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605 & n.4 (Tex. App.–Houston [1st Dist.] 1999, no pet.).  Accordingly, the appeal is dismissed for want of jurisdiction. 

Opinion delivered December 12, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)