Bobby Ray Nichols v. State

NO. 12-13-00366-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BOBBY RAY NICHOLS, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for want of jurisdiction. Following a jury trial, Appellant
was convicted of murder, and his sentence was imposed in open court on January 24, 2013.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice
of appeal is filed within thirty days after the day sentence is imposed or suspended in open court
unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1). When a timely motion
for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is
imposed or suspended in open court. TEX. R. APP. P. 26.2(a)(2).
Appellant did not file a motion for new trial. Therefore, Appellant’s notice of appeal was
due to have been filed on or before February 25, 2013. See TEX. R. APP. P. 21.4(a), 26.2(a)(1).
Appellant did not file his notice of appeal until December 3, 2013, and did not file a motion for
extension of time to file his notice of appeal as permitted by Texas Rule of Appellate Procedure
26.3. See TEX. R. APP. P. 26.3 (appellate court may extend time for filing notice of appeal if,
within fifteen days after deadline for filing notice of appeal, appellant files notice of appeal in
trial court and motion complying with Texas Rule of Appellate Procedure 10.5(b) in appellate
court).
On December 3, 2013, this court notified Appellant that his notice of appeal was
untimely and that there was no timely motion for an extension of time to file the notice of appeal
as permitted by Rule 26.3. Appellant was further informed that the appeal would be dismissed
unless, on or before December 13, 2013, the information filed in this appeal was amended to
show the jurisdiction of this court.
In response to this court’s December 3, 2013 notice, Appellant filed a motion for
extension of time to show the jurisdiction of this court. In his motion, Appellant implicitly
concedes that his notice of appeal was filed well past the deadline prescribed by Rule 26.2. He
also explains his reasons for wanting to appeal,, but he does not explain how an extension of
time would assist him in showing the jurisdiction of this court. Moreover, to the extent that
Appellant seeks an out of time appeal, that remedy is beyond the jurisdiction of this court. See
Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (“We are the
only court with jurisdiction in final postconviction felony proceedings.”); Parr v. State, 206
S.W.3d 143, 145 (Tex. App.–Waco 2006, no pet.) (“[T]he Court of Criminal Appeals . . . has the
exclusive authority to grant post-felony[-]conviction relief, such as an out-of-time appeal, if the
defendant is then confined as a result of that final felony conviction.”).
Appellant’s notice of appeal was filed approximately ten months after sentence was
imposed and therefore was untimely. Because this court has no authority to allow the late filing
of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See 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). Accordingly, we overrule Appellant’s motion for extension of time to
show this court’s jurisdiction and dismiss the appeal for want of jurisdiction. Appellant’s
request for an extension of time to correct other defects in the appeal is overruled as moot.
Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 20, 2013
NO. 12-13-00366-CR
BOBBY RAY NICHOLS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0908-12)
THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this court 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., Griffith, J., and Hoyle, J.