William Owens, Jr. v. State

Owens-Wm v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-93-047-CR

     WILLIAM OWENS, JR.,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 12th District Court

Leon County, Texas

Trial Court # 7637-B

O P I N I O N

      A jury found William Owens, Jr. guilty of aggravated sexual assault, and the court assessed punishment of sixty years' imprisonment. See Tex. Penal Code Ann. § 22.021 (Vernon 1994). By one point of error, he complains that the court wrongfully denied his motion for a new trial. The State specifically challenges our jurisdiction to hear this appeal. Because Owens filed his notice of appeal late, we dismiss for want of jurisdiction.

      The court imposed punishment in open court on Friday, January 15, 1993. Owens' notice of appeal or motion for a new trial was due within thirty days after the court's action, i.e., by Sunday, February 14. See Tex. R. App. P. 31(a)(1), 41(b)(1). However, because the due date fell on a Sunday, Owens had until "the end of the next day which [was] not a Saturday, Sunday or legal holiday" to file his notice or motion. See id. 5(a). Thus, his notice of appeal or a motion for a new trial was due on Monday, February 15. He filed his motion for a new trial on February 16, one day late. An untimely motion for a new trial is a nullity. See Murdock v. State, 840 S.W.2d 558, 570-71 (Tex. App.—Texarkana 1992), vacated for reconsideration on other grounds, 845 S.W.2d 915 (Tex. Crim. App. 1993), adopted and incorporated on reconsideration, 856 S.W.2d 262, 264 (Tex. App.—Texarkana 1993, pet. ref'd). Thus, Owens' motion did not extend the due date for his notice of appeal. See Tex. R. App. P. 41(b)(1).

      Because his motion for a new trial was untimely, Owens must have filed his notice of appeal by February 15 or by March 2 if filed in conjunction with a request for an extension of time directed to this court. See id. 5(a), 41(b)(1), (2). He did not file a notice until April 14, nearly two months too late, nor did he request an extension of time from this court. See id. Thus, he failed to invoke our jurisdiction over his appeal. See Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988).

      Therefore, we dismiss this cause for want of jurisdiction.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed August 2, 1995

Do not publish