Russell Thomas Bean v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00033-CR
NO. 09-23-00034-CR
__________________
RUSSELL THOMAS BEAN, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 21-37100 and 21-37101
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MEMORANDUM OPINION
On December 12, 2022, the trial court sentenced Russell Thomas Bean on
separate indictments for abandoning a child, but suspended imposition of the
sentences and placed Bean on community supervision. See Tex. Penal Code Ann. §
22.041; see also Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1). On January 26,
2023, Bean filed notices of appeal. We questioned whether we had jurisdiction over
the appeals. In response, on February 8, 2023, a newly appointed counsel for Bean
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filed a motion through which Bean requests that the appeals be allowed to proceed.
Bean does not claim that he has obtained habeas relief granting him the right to file
out-of-time appeals. See generally Tex. Code Crim. Proc. Ann. art. 11.072; see also
Ex parte Hiracheta, 307 S.W.3d 323, 325 (Tex. Crim. App. 2010) (“An applicant
must file an application for writ of habeas corpus under Texas Code of Criminal
Procedure 11.072 in the trial court in which community supervision was imposed in
order to attack a judgment of conviction ordering community supervision.”).
In a criminal case, a timely notice of appeal is necessary to invoke this court’s
jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Here, the
notice of appeal was due on January 11, 2023. See Tex. R. App. P. 26.2(a)(1). A late
notice of appeal may be considered timely so as to invoke the appellate court’s
jurisdiction if it is filed within fifteen days of the last day allowed for filing, along
with a motion for extension of time which is filed with the court of appeals within
fifteen days of the last day allowed for filing the notice of appeal, and the court of
appeals grants the motion for extension of time. See Tex. R. App. P. 26.3 Here, a
motion for extension of time was due to be filed no later than January 26, 2023.
“When a notice of appeal is filed within the fifteen-day period but no timely motion
for extension of time is filed, the appellate court lacks jurisdiction.” Olivo, 918
S.W.2d at 522.
We dismiss the appeals for lack of jurisdiction. See Tex. R. App. P. 43.2(f).
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APPEALS DISMISSED.
PER CURIAM
Submitted on March 7, 2023
Opinion Delivered March 8, 2023
Do Not Publish
Before Horton, Johnson and Wright, JJ.
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