Ex Parte: Colby Elkins Tompkins v. the State of Texas ( 2023 )

NO. 12-23-00154-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
EX PARTE: COLBY ELKINS § APPEAL FROM THE 392ND
TOMPKINS
§ DISTRICT COURT
§ HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Colby Elkins Tompkins filed a pro se notice of appeal to challenge the denial of his
application for writ of habeas corpus seeking a bail reduction. On June 12, 2023, the Clerk of
this Court notified Appellant that the information received in this appeal failed to show the
jurisdiction of this 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. The notice warned that the appeal would be dismissed unless Appellant amended the
information on or before June 22 to show this Court’s jurisdiction. This deadline passed without
a response from Appellant or an amended notice of appeal.
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. Here, Appellant
filed his notice of appeal on June 12, after expiration of the time for filing a timely notice of
appeal or seeking an extension of time to file the notice of appeal from the trial court’s
December 1, 2022 order denying his request for bail reduction.
“[A]ppeals 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 June 30, 2023.
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
JUNE 30, 2023
NO. 12-23-00154-CR
EX PARTE: COLBY ELKINS TOMPKINS
Appeal from the 392nd District Court
of Henderson County, Texas (Tr.Ct.No. CR22-0310-173)
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