Brandon Lee Nix v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00348-CR
BRANDON LEE NIX APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT AT LAW NO. 3 OF DENTON COUNTY
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MEMORANDUM OPINION1
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On May 5, 2010, after finding that Appellant Brandon Lee Nix violated the
terms and conditions of his community supervision, the trial court adjudicated Nix
guilty of, and sentenced him to 120 days’ confinement for, misdemeanor theft of
property with a value of $50 or more but less than $500. See Tex. Penal Code
Ann. § 31.03(e)(2)(A)(i) (Vernon 2003).
1
See Tex. R. App. P. 47.4.
Nix’s motion for new trial was due June 4, 2010, but it was not filed until
June 7, 2010. See Tex. R. App. P. 21.4(a). Therefore, his notice of appeal was
also due June 4, 2010. See Tex. R. App. P. 26.2(a). On August 20, 2010, Nix
filed his notice of appeal with a motion to extend time to file the notice of appeal.2
On September 9, 2010, we notified Nix’s counsel of the apparent
untimeliness of the appeal; requested that he advise whether the motion for new
trial was properly addressed, stamped, and mailed by the United States Postal
Service to the proper trial court clerk on or before June 4, 2010; stated that any
response must be filed on or before September 20, 2010; and stated that the
appeal would be dismissed for want of jurisdiction if the court determined that the
appeal was not timely perfected. See Tex. R. App. P. 9.2(b)(1), (2).3 We have
received no response.
A notice of appeal that complies with the requirements of rule 26 is
essential to vest this court with jurisdiction. See Tex. R. App. P. 26.2(a)(1)
(providing that notice of appeal must be filed within thirty days of sentencing).
The court of criminal appeals has expressly held that, without a timely filed notice
2
We denied Nix’s motion to extend time to file his notice of appeal on
September 27, 2010, because without a showing that the motion for new trial
was timely filed, the motion to extend time to file the notice of appeal was also
untimely. See Tex. R. App. P. 26.3.
3
Under rule of appellate procedure 9.2(b), a notice of appeal is timely only
if it was deposited with the United States Postal Service on or before the last day
for filing and received by the trial court within ten days after the filing deadline.
Tex. R. App. P. 9.2(b)(1). Our September 9, 2010 letter also listed the items that
we would accept as evidence of proof of mailing.
2
of appeal or motion for extension of time, we cannot exercise jurisdiction over an
appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because
there has been no showing that Nix’s motion for new trial was timely filed, his
notice of appeal was correspondingly untimely. Therefore, we dismiss the
appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).
PER CURIAM
PANEL: MCCOY, MEIER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 14, 2010
3