James Clayton Kelly v. State ( 2011 )

MEMORANDUM OPINION
No. 04-11-00730-CR
James Clayton KELLY,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR2879A
Honorable Ron Rangel, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 30, 2011
DISMISSED FOR LACK OF JURISDICTION
The trial court imposed sentence on August 26, 2011, and appellant did not file a motion
for new trial. The deadline for filing a notice of appeal was therefore September 26, 2011, thirty
days from the date sentence was imposed. See TEX. R. APP. P. 26.2(a)(1). A notice of appeal
was not filed until October 4, 2011. Appellant did not file a timely motion for extension of time
to file the notice of appeal. See TEX. R. APP. P. 26.3. Because it appeared the notice of appeal
04-11-00730-CR
was not timely filed, we issued a show cause order on October 7, 2011, which stated in pertinent
part:
A notice of appeal may appear to be late if filed by mail pursuant to Rule 9.2(b) of
the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.2; Moore v. State,
840 S.W.2d 439 (Tex. Crim. App. 1992) (applying mailbox rule to filing of cost
bond in appeal of criminal case); Villarreal v. State, 199 S.W.3d 30 (Tex. App.—
San Antonio, 2006, order), disp. on merits, 2007 WL 120625 (No. 04-06-00022-
CR, Tex. App.—San Antonio, Jan. 19, 2007, pet. ref’d) (holding inmate’s notice
of appeal was timely filed when delivered in a properly-addressed envelope to jail
authorities on or before the due date and received by clerk within ten days of
filing deadline). The certificate of service of the notice on the District Attorney’s
Office is dated October 4, 2011. However, the notice of appeal does not indicate
whether it was filed with the clerk’s office by mail and the record does not
contain a copy of an envelope bearing a postmark.
We therefore ORDER appellant to file a response on or before October 27, 2011,
establishing that the notice of appeal was timely filed by mail or otherwise
showing cause why this appeal should not be dismissed for want of jurisdiction.
See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that
timely notice of appeal is necessary to invoke court of appeals’ jurisdiction). If
appellant fails to satisfactorily respond within the time provided, the appeal will
be dismissed. If a supplemental clerk’s record is required to show jurisdiction,
appellant must ask the trial court clerk to prepare one and must notify the clerk of
this court that such a request was made.
Appellant did not file a response. Therefore, because the notice of appeal in this case was
not timely filed, we lack jurisdiction to entertain the appeal. See 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 this appeal for want of jurisdiction.
PER CURIAM
DO NOT PUBLISH
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