Robert Donald Britt v. the State of Texas ( 2021 )

NO. 12-21-00166-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ROBERT DONALD BRITT, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Robert Donald Britt, acting pro se, filed a notice of appeal from a judgment in which
sentence was imposed on May 3, 2021. In a criminal case, the appellant perfects an appeal by
timely filing a sufficient notice of appeal. TEX. R. APP. P. 25.2(b). The notice of appeal must be
filed (1) within thirty days after the day sentence is imposed or suspended in open court or after
the day the trial court enters an appealable order, or (2) within ninety 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(a). The appellate court may extend the time for filing a notice of appeal if, within
fifteen days after the deadline for filing the notice, the party files in the trial court the notice of
appeal and files in the appellate court a motion complying with Rule 10.5(b). TEX. R. APP. P.
26.3.
Because sentence was imposed on May 3 and Appellant filed a timely motion for new
trial, Appellant’s notice of appeal was due on or before August 2. See TEX. R. APP. P. 26.2(a)(1).
A motion for extension of time was due on or before August 17. Appellant filed his notice of
appeal on August 30.
On October 5, the Clerk of this Court notified Appellant that the information received
failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the
time allowed by the rules of appellate procedure and no timely motion for an extension of time to
file the notice of appeal. See TEX. R. APP. P. 26.2(a), 26.3. We informed Appellant that the
appeal would be dismissed unless the information was amended on or before October 15 to show
this Court’s jurisdiction. In response, Appellant cited to Article V, Section 6 of the Texas
Constitution and Section 22.221 of the Texas Government Code.
But Section 22.221 governs this Court’s writ power. See TEX. GOV’T CODE ANN.
§ 22.221 (West Supp. 2020). And Section 6 of Article V addresses our constitutional grant of
jurisdiction. See Tex. Const. art. V, § 6. However, “appeals by either the State or the defendant
in a criminal case are permitted only when they are specifically authorized by statute.” State ex
rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011). This Court is not authorized to
extend the time for perfecting an appeal except as provided by the Texas Rules of Appellate
Procedure. 1 See TEX. R. APP. P. 26.2, 26.3; see also Slaton v. State, 981 S.W.2d 208, 210 (Tex.
Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because
Appellant’s notice of appeal was not timely filed and he did not file a motion for extension with
this Court within the time prescribed by Rule 26.3, we dismiss Appellant’s appeal for want of
jurisdiction. See Olivo, 918 S.W.2d at 522; see also TEX. R. APP. P. 43.2(f).
Opinion delivered October 20, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
1
Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth
Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR,
2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for
publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without
permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 20, 2021
NO. 12-21-00166-CR
ROBERT DONALD BRITT,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1061-17)
THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.