David Kitzmiller v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00072-CR
DAVID KITZMILLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant David Kitzmiller’s notice of appeal was due February 20, 2014,
but was not filed until February 21, 2014. See Tex. R. App. P. 26.2(a)(2). On
April 2, 2014, we informed Kitzmiller of our concern that we may not have
jurisdiction over this appeal and requested that he advise the court whether he
filed the notice of appeal by mail. See Tex. R. App. 9.2(b). Kitzmiller responded
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See Tex. R. App. P. 47.4.
on April 14, 2014, that he filed the notice of appeal on February 21, 2014, based
on his good-faith reliance on a website that calculated when the notice of appeal
was due and that if the court “does not believe” that he timely filed his appeal,
then he is entitled—under the state and federal constitutions—to cross-examine
“witnesses.” Kitzmiller is not so entitled. It is well established that a notice of
appeal that complies with the requirements of rule 26 is essential to vest this
court with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If an appeal
is not timely perfected, the court has no jurisdiction and can take no action other
than to dismiss the appeal. Slaton, 981 S.W.2d at 210.
As part of his response to our jurisdiction letter, Kitzmiller filed a motion for
extension of time to file the notice of appeal, but the motion was not timely filed,
see Tex. R. App. P. 26.3, and we are unable to construe the motion as timely
filed despite Kitzmiller’s good-faith belief that he filed the notice of appeal timely.
See Olivo, 918 S.W.2d at 523 (“When a notice of appeal, but no motion for
extension of time, is filed within the fifteen-day period, the court of appeals lacks
jurisdiction to dispose of the purported appeal in any manner other than by
dismissing it for lack of jurisdiction.”). Kitzmiller alternatively asks us to construe
his response as a motion for an out-of-time appeal, but the appropriate vehicle
for that relief is by writ of habeas corpus from the court of criminal appeals. See
Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).
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Accordingly, we deny Kitzmiller’s motion and dismiss this appeal for want of
jurisdiction. See Tex. R. App. P. 43.2(f).
PER CURIAM
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 30, 2014
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