Matthew Andrew Allred v. the State of Texas ( 2022 )


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  •                           NUMBER 13-22-00524-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    MATTHEW ANDREW ALLRED,                                                      Appellant,
    v.
    THE STATE OF TEXAS,                                                          Appellee.
    On appeal from the 443rd District Court
    of Ellis County, Texas.
    MEMORANDUM OPINION
    Before Justices Longoria, Hinojosa, and Silva
    Memorandum Opinion by Justice Longoria
    Appellant Matthew Andrew Allred attempts to appeal convictions for two counts of
    aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021. On March 11,
    2022, the trial court imposed concurrent sentences of life imprisonment. Appellant’s
    notice of appeal was filed with the district clerk on October 10, 2022, and was filed with
    the Tenth Court of Appeals on October 20, 2022. The Texas Supreme Court subsequently
    transferred the appeal to this Court. See TEX. GOV’T CODE ANN. § 73.001.
    On November 2, 2022, the Clerk of this Court notified appellant that it appeared
    that the appeal had not been not timely perfected and advised appellant that the appeal
    would be dismissed if the defect was not corrected within ten days from the date of receipt
    of the Court’s directive. See TEX. R. APP. P. 37.1. In response, appellant filed an amended
    notice of appeal stating that appellant was convicted on March 11, 2022, the judgments
    were “assessed” on September 29, 2022, and a motion for new trial was filed on October
    17, 2022. Appellant subsequently filed a second amended notice of appeal reiterating this
    sequence of events and stating that “[b]oth the Court File mark as well as the Presiding
    Judge’s signature[s] indicate the Judgment[s were] entered on September 29, 2022.” In
    this regard, the judgments bear file-stamped dates of September 29, 2022, and state near
    the trial court’s signature line: “Date Judgment Entered: September 29, 2022.”
    This Court’s appellate jurisdiction in a criminal case is invoked by a timely filed
    notice of appeal. Guthrie-Nail v. State, 
    543 S.W.3d 225
    , 226 (Tex. Crim. App. 2018); Olivo
    v. State, 
    918 S.W.2d 519
    , 522 (Tex. Crim. App. 1996). Absent a timely filed notice of
    appeal, 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 for want of jurisdiction. Castillo v.
    State, 
    369 S.W.3d 196
    , 198 (Tex. Crim. App. 2012); Slaton v. State, 
    981 S.W.2d 208
    ,
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    210 (Tex. Crim. App. 1998). “The Texas Rules of Appellate Procedure govern the
    perfection of appeal.” Smith v. State, 
    559 S.W.3d 527
    , 531 (Tex. Crim. App. 2018).
    Texas Rule of Appellate Procedure 26.2(a) prescribes the period of time within
    which a defendant in a criminal case must file a notice of appeal in order to perfect the
    appeal:
    (a)    By the Defendant. The notice of appeal must be filed:
    (1)    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
    (2)    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(a). Therefore, in a criminal case, the defendant must file a notice of
    appeal 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. See 
    id.
     R. 26.2(a)(1). If the
    defendant timely files a motion for new trial, the notice of appeal must be filed within ninety
    days after the day sentence is imposed or suspended in open court. See 
    id.
     R. 26.2(a)(2).
    The defendant may obtain an extension of time to file the notice of appeal if, within fifteen
    days after the deadline for filing the notice of appeal, the defendant files the notice of
    appeal in the trial court and files a motion complying with the Texas Rules of Appellate
    Procedure in the appellate court. See 
    id.
     R. 26.3; see also 
    id.
     R. 10.5. Thus, a late notice
    of appeal may be considered timely if (1) it is filed within fifteen days of the last day
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    allowed for filing, (2) a motion for extension of time is filed in the court of appeals within
    fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of
    appeals grants the motion for extension of time. See Olivo, 918 S.W.3d at 522.
    When a defendant appeals from a conviction in a criminal case, the time to file a
    notice of appeal runs from the date sentence is imposed or suspended in open court, not
    from the date sentence is signed and entered by the trial court. See Rodarte v. State, 860
    S.W .2d 108, 109 (Tex. Crim. App. 1993) (construing the predecessor to Rule 26.2); Lair
    v. State, 
    321 S.W.3d 158
    , 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Roberts
    v. State, 
    270 S.W.3d 662
    , 663 (Tex. App.—San Antonio 2008, no pet.); Modica v. State,
    
    151 S.W.3d 716
    , 720 (Tex. App.—Beaumont 2004, pet. ref’d); George v. State, 
    883 S.W.2d 250
    , 251 (Tex. App.—El Paso 1994, no pet.). Otherwise, when a criminal
    defendant appeals from an “appealable order,” the time to file the notice of appeal is
    calendared from the date that order is entered. See Blanton v. State, 
    369 S.W.3d 894
    ,
    904 (Tex. Crim. App. 2012) (discussing appeals from nunc pro tunc orders); O’Conner v.
    State, 
    266 S.W.3d 575
    , 577 (Tex. App.—Amarillo 2008, pet. ref’d) (explaining that the
    calculation of the appellate deadlines is “context dependent” regarding whether the
    appeal is calculated from the time sentence is imposed or suspended or from an
    appealable order).
    The Court, having examined and fully considered the documents on file and the
    applicable law, is of the opinion that the notice of appeal was not timely filed, and we thus
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    lack jurisdiction over the appeal. See Slaton, 
    981 S.W.2d 208
    ; Olivo, 
    918 S.W.2d at 522
    ;
    see also Ater v. Eighth Ct. of Apps., 
    802 S.W.2d 241
    , 242–43 (Tex. Crim. App. 1991)
    (orig. proceeding) (explaining that out-of-time appeals are governed by post-conviction
    writs of habeas corpus). Accordingly, we dismiss this appeal for lack of jurisdiction.
    NORA L. LONGORIA
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2 (b).
    Delivered and filed on the
    10th day of November, 2022.
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