Scotty D. Justice v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00139-CR
SCOTTY D. JUSTICE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2010-427,049, Honorable Bradley S. Underwood, Presiding
June 4, 2013
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant Scotty D. Justice attempts to appeal his convictions and sentences for
aggravated sexual assault. The record indicates the sentences were imposed on
January 23, 2013. A motion for new trial was filed on February 21. Appellant’s notice of
appeal was due by April 23 but was not filed until April 29. No motion pursuant to
appellate rule 26.3 was filed. By letter we notified the parties of our apparent lack of
appellate jurisdiction, and set a deadline for the filing of documents or matters
considered necessary for the Court to determine its jurisdiction. Counsel for appellant
has not submitted a response.
If a motion for new trial is filed, a notice of appeal must be filed within ninety days
after the day sentence is imposed or suspended in open court. Tex. R. App. P.
26.2(a)(2). The time within which to file the notice may be enlarged if, within 15 days
after the deadline for filing the notice, the party files the notice of appeal and a motion
complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. Tex. R. App.
P. 26.3. Without an extension, appellant’s notice of appeal was due by April 23, 2013.
Because appellant’s notice of appeal was not filed by that date, we have no jurisdiction
over this appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). As
we lack jurisdiction to address the merits of the appeal, we may take no action other
than dismissal.1 See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998);
Olivo, 918 S.W.2d at 523; Hess v. State, No. 07-11-00359-CR; No. 07-11-00360-CR,
2011 Tex. App. Lexis 7720 (Tex.App.--Amarillo Sept. 26, 2011, no pet.) (mem. op., not
designated for publication).
Accordingly, we dismiss the appeal for want of jurisdiction.
James T. Campbell
Justice
1
Appellant may be entitled to an out-of-time appeal by filing a post-conviction
writ of habeas corpus returnable to the Texas Court of Criminal Appeals. Tex. Code
Crim. Proc. Ann. art. 11.07, § 3 (West Supp. 2012).
2