Julio Cesar Jiminez v. State of Texas ( 2000 )

No. 04-00-00562-CR Julio Cesar JIMENEZ, Appellant v. The STATE of Texas, Appellee From the 293rd Judicial District Court, Zavala County, Texas Trial Court No. 97-06-02666-CR Honorable Cynthia L. Muniz, Judge Presiding

PER CURIAM

Sitting: Alma L. López, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: December 13, 2000

DISMISSED FOR WANT OF JURISDICTION

The appellant, Julio Cesar Jimenez, was indicted and tried by a jury for the offense of murder. The jury assessed punishment at 40 years in prison. The trial judge sentenced Jimenez accordingly on May 5, 2000. Jimenez then filed a pro se motion for new trial on June 2, 2000. Because he filed a motion for new trial on that day, Jimenez's notice of appeal was due to be filed by August 3, 2000. Tex. R. App. P. 26.2(a)(1). Motions for extension of time to file the notices of appeal were due on August 18, 2000, but Jimenez did not file a motion for extension of time. Tex. R. App. P. 26.3. Instead, Jimenez filed a notice of appeal in the trial court on August 18, 2000.

Our initial review of the record in this appeal indicated that we did not have jurisdiction because the notice of appeal was late, so we ordered Jimenez to show cause in writing why the appeal should not be dismissed for lack of jurisdiction. In response, Jimenez's appellate attorney filed a response stating that the district clerk's file contained a notice of appeal with two file-stamp markings: one marking reflecting a filing date of August 2, 2000, and another reflecting a filing date of August 18, 2000. The appellate attorney explained that although the August 2, 2000 mark appeared to be incomplete, that marking would indicate that the notice of appeal was timely. The attorney further explained that the August 18, 2000 mark appeared to be a complete file-stamp, but that marking indicated the notice of appeal was untimely. The attorney concluded by stating that the apparent untimeliness of the notice of appeal rested on the district clerk and asked that we not dismiss the appeal for want of jurisdiction.

The actual filing date of Jimenez's notice of appeal is determinative of jurisdiction in this cause, so we ordered the district clerk to file a supplemental record containing a notice of appeal that reflects the correct filing date. In response, the district clerk filed a supplemental clerk's record containing a notice of appeal, file-stamped with the date of August 18, 2000. As a result, we consider that date as the actual filing date for Jimenez's notice of appeal.

To invoke this court's jurisdiction for an appeal from a criminal conviction, an appellant must follow the requisites for the perfection of appeal. See Tex. R. App. P. 25.2. The rules of appellate procedure require an appellant to perfect an appeal by filing a notice of appeal within thirty days after the day sentence is imposed or suspended in open court. See id. R. 26.2. Jimenez, however, did not file his notice of appeal until August 18, 2000, over two weeks after the deadline for filing the notice of appeal. As a result, we have no jurisdiction over an appeal. Accordingly, we dismiss this appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH