Roy Tippitt v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00628-CR
Roy TIPPITT,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR13262
Honorable Stephanie R. Boyd, Judge Presiding
PER CURIAM
Sitting: Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Delivered and Filed: October 30, 2019
DISMISSED FOR LACK OF JURISDICTION
Roy Tippitt seeks to appeal the judgment convicting him of aggravated robbery. The trial
court imposed sentence on June 3, 2019 in accordance with a plea bargain. Tippitt did not file a
motion for new trial. Therefore, a notice of appeal was due July 3, 2019, or the notice and a motion
for extension of time to file, were due fifteen days later on July 18, 2019. TEX. R. APP. P. 26.2(a)(1),
26.3. Both the notice of appeal and a motion for extension of time must be timely filed in order to
invoke this court’s jurisdiction. See TEX. R. APP. P. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex.
Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.–Houston [1st Dist.] 1999,
04-19-00628-CR
no pet.). The record does not contain a notice of appeal, but Tippitt filed an untimely pro se motion
for extension of time to file the notice of appeal on September 11, 2019.
We gave notice to appellant that the record raised an issue regarding our jurisdiction over
the appeal and requested a response showing the appeal was timely filed. Appellant’s court
appointed appellate counsel filed a late response and a motion for leave to file the response. We
grant leave to file the response. However, the response does not provide any argument that the
motion for extension of time to file the notice of appeal was timely.
Because neither a notice of appeal nor a timely motion for extension of time to file a notice
of appeal was filed, we lack jurisdiction to entertain the motion for extension of time to file the
notice of appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that if
appeal is not timely perfected, court of appeals does not obtain jurisdiction to address merits of
appeal, and court may take no action other than to dismiss appeal; court may not suspend rules to
alter time for perfecting appeal); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see
also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that
writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs
out-of-time appeals from felony convictions). Accordingly, we dismiss the motion for extension
of time to file the notice of appeal for lack of jurisdiction. 1
PER CURIAM
DO NOT PUBLISH
1
Even if appellant had timely appealed, this appeal must be dismissed because the trial court’s certification stated this
“is a plea-bargain case, and the defendant has NO right of appeal” and “the defendant has waived the right of appeal.”
See TEX. R. APP. P. 25.2(a)(2). The clerk’s record supports the trial court’s certification. See Dears v. State, 154
S.W.3d 610, 615 (Tex. Crim. App. 2005).
-2-