kerwin-gibbs-v-allsups-convenience-stores-inc-and-federated-mutual ( 2005 )

NO. 07-05-0343-CV IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 8, 2005

______________________________ KERWIN GIBBS, APPELLANT

V.

ALLSUP'S CONVENIENCE STORES, INC. AND FEDERATED MUTUAL INSURANCE COMPANY, FEDERATED INSURANCE AN ASSUMED NAME OF FEDERATED MUTUAL INSURANCE COMPANY AND/OR FEDERATED SERVICES INSURANCE COMPANY AND DAWN WILLEFORD, APPELLEES _________________________________

FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

NO. 2005-597,010; HONORABLE PAULA LANEHART, JUDGE _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

MEMORANDUM OPINION

By letter dated October 24, 2005, this Court directed appellant Kerwin Gibbs to pay the required filing fee of $125 by November 3, 2005, before any further action could be taken in this appeal, noting that failure to do so might result in dismissal. Unless a party is excused from paying a filing fee, the Clerk of this Court is required to collect filing fees set by statute or the Supreme Court when an item is presented for filing. See Tex. R. App. P. 5 and 12.1(b). Although the filing of a notice of appeal invokes this Court's jurisdiction, if a party fails to follow the prescribed rules of appellate procedure, the appeal may be dismissed. Tex. R. App. P. 25.1(b). Thus, because the filing fee of $125 remains unpaid, we must dismiss the appeal.

Accordingly, the appeal is dismissed for failure to comply with the Texas Rules of Appellate Procedure and with a notice from the Clerk requiring payment of the filing fee within ten days. Tex. R. App. P. 42.3(c).

Mackey K. Hancock

Justice

onstrated other grounds for continuing the appeals, on or before October 22, 2007. Appellant has corresponded with the Court, but her correspondence does not provide information permitting us to conclude we have jurisdiction over the appeals.

In a criminal case, the Texas Rules of Appellate Procedure require that notice of appeal be filed within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2. As noted, appellant's notices of appeal from the judgments and sentences imposed in August 2006 were filed in April 2007. ⁽¹⁾

Only a timely notice of appeal invokes the jurisdiction of the court of appeals. State v. Riewe, 13 S.W.3d 408, 411 (Tex.Crim.App. 2000); Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998). If an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Olivio v. State, 918 S.W.2d 519 (Tex.Crim.App. 1999); Slaton, 981 S.W.2d at 210; Stumpf v. State, 2001 WL 1566655 (Tex.App.-Amarillo 2001, no pet.) (not designated for publication).

Further, the rules we must follow require us to dismiss an appeal in a criminal case in the absence of certification showing the appellant has the right of appeal. Tex. R. App. P. 25.2(d).

Because appellant did not file a timely notice of appeal, we lack jurisdiction to consider her appeals. Accordingly, they are dismissed for want of jurisdiction.

James T. Campbell

Justice

Do not publish.

1. Correspondence provided by appellant makes reference to an out-of-time appeal. Permission for such a late appeal must be granted by the Court of Criminal Appeals. Tex. Code Crim. Proc. art. 11.07 (Vernon 2007).