Ivory James Johnson v. the State of Texas ( 2023 )

Opinion issued July 25, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00371-CR
———————————
IVORY JAMES JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1663686
MEMORANDUM OPINION
A jury convicted appellant, Ivory James Johnson, of the offense of aggravated
robbery with a deadly weapon. On March 7, 2023, the trial court signed its judgment
of conviction sentencing appellant to nine years’ imprisonment. Appellant, acting
pro se, filed a notice of appeal with our Court on April 26, 2023.1 The notice of
appeal was subsequently filed with the trial court on May 2, 2023. We dismiss the
appeal.
A timely notice of appeal is necessary to invoke a court of appeals’
jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In a
criminal case, a defendant’s notice of appeal is due within thirty days after sentence
is imposed in open court or the trial court enters an appealable order. See TEX. R.
APP. P. 26.2(a)(1). The deadline to file a notice of appeal is extended to ninety days
after the sentence is imposed if the defendant timely files a motion for new
trial. See TEX. R. APP. P. 26.2(a)(2). The time for filing a notice of appeal may be
further extended if, within fifteen days of the deadline for filing the notice of appeal,
appellant files the notice of appeal and a motion for extension of time compliant with
Rule 10.5(b). See TEX. R. APP. P. 26.3.
Here, appellant’s sentence was imposed on March 7, 2023. Because the
clerk’s record does not reflect that any post-trial motions were filed that would
extend the notice of appeal deadline, appellant’s notice of appeal was due within
thirty days after his sentence was imposed—that is, by April 6, 2023. See TEX. R.
1
Although Rule 25.2 of the Texas Rules of Appellate Procedure requires an appellant
to file his notice of appeal with the trial court clerk, the rule further states that “[i]f
the notice of appeal is received in the court of appeals, the clerk of that court shall
immediately record on the notice the date that it was received and send the notice to
the trial court clerk.” TEX. R. APP. P 25.2(c)(1).
2
APP. P 26.2(a)(1). No motions to extend the time for filing a notice of appeal were
filed with fifteen days of the deadline. See TEX. R. APP. P. 26.3. Thus, even
considering appellant’s notice of appeal to have been filed on April 26, 2023 (the
date the notice of appeal was mistakenly filed with our Court), appellant’s notice of
appeal was untimely filed twenty days after the deadline.
This Court has no authority to allow the late filing of a notice of appeal except
as provided by Rule 26.3. See Olivo, 918 S.W.2d at 522. If an appeal is not timely
perfected, then a court of appeals does not obtain jurisdiction to address the merits
of the appeal and can take no action other than to dismiss the appeal. See Slaton v.
State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
Accordingly, we dismiss this appeal for want of jurisdiction. We dismiss any
pending motions as moot.
PER CURIAM
Panel consists of Justices Goodman, Landau, and Rivas-Molloy.
Do not publish. TEX. R. APP. P. 47.2(b).
3