Belinda A. Johnson v. State ( 2010 )

Opinion issued April 1, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00060-CR

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BELINDA A. JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court  

 Harris County, Texas

Trial Court Case No. 1225764

MEMORANDUM OPINION  

          We lack jurisdiction to hear this appeal. The trial court sentenced appellant, Belinda A. Johnson, and signed a final judgment in this case on December 3, 2009.  Appellant did not file a motion for new trial, and therefore the deadline for filing notice of appeal was Monday, January 4, 2010, because the thirtieth day after sentencing fell on a weekend.  See Tex. R. App. P. 26.2(a); see also Tex. R. App. P. 4.1(a) (governing computation of time when as here, last day of period falls on Saturday or Sunday).

          Appellant filed a notice of appeal on January 13, 2010, nine days after the deadline.  Notice of appeal was deposited in the mail on January 6, 2010 according to the postmark on the copy of the envelope included in the clerk’s record.  Because the notice of appeal was mailed after the filing deadline, it did not comply with Rule 9.2 of the Texas Rules of Appellate Procedure, the “mailbox rule.” See Tex. R. App. P. 9.2(b).

          This Court may extend the time for filing a notice of appeal, if within 15 days after the deadline for filing the notice of appeal, the party files in the trial court a notice of appeal, and files in this Court a motion for extension of time that complies with Rule 10.5(b) of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 26.3.  Although the notice of appeal in this case was filed within the 15-day time period for filing a rule 26.3 motion for extension of time, no such motion for extension of time was filed. 

          An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case.  Slaton v. State, 981 S.W.2d 208, 209-10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

          We therefore dismiss the appeal for lack of jurisdiction.

          Any pending motions are denied as moot.

PER CURIAM

Panel consists of Chief Radack, and Justices Alcala and Higley.

Do not publish.   Tex. R. App. P. 47.2(b).