Danny Ware v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00446-CR
________________________
DANNY LYNN WARE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 67,226-B; Honorable John Board, Presiding
January 6, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Pursuant to a plea bargain, Appellant, Danny Lynn Ware, was convicted of
aggravated assault with a deadly weapon and sentenced to ten years confinement and
a $500 fine. Sentence was imposed on September 12, 2013, and the trial court signed
a Trial Court’s Certification of Defendant’s Right of Appeal reflecting Appellant had no
right of appeal and had waived the right to appeal. On December 27, 2013, Appellant,
proceeding pro se, filed a “Request to Preserve Evidence” in the trial court requesting
permission to appeal his plea bargain.1 For the reasons expressed herein, we dismiss
this purported appeal for want of jurisdiction.
A timely and proper notice of appeal invokes this Court=s jurisdiction. State v.
Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). When, as here, no motion for new
trial was filed, the notice of appeal was required to be filed within thirty days after the
day Appellant’s sentence was imposed. TEX. R. APP. P. 26.2(a)(1). The deadline could
have been extended if, within fifteen days of the deadline, Appellant had filed the notice
with the trial court clerk and had also filed a motion for extension of time in compliance
with Rule 10.5(b) of the Texas Rules of Appellate Procedure in this Court. See TEX. R.
APP. P. 26.3. This Court has no authority to invoke Rule 2 of the Texas Rules of
Appellate Procedure to enlarge the time in which to file a notice of appeal. See TEX. R.
APP. P. 2; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
The limited documents filed in this Court reflect that Appellant’s sentence was
imposed in open court on September 12, 2013. The thirtieth day to file the notice of
appeal was October 12, 2013. Applying the fifteen day extension provided by Rule 26.3
extended the deadline to October 27, 2013.2 The notice of appeal, however, was not
filed until after all deadlines for doing so had expired. Appellant's untimely filing of his
notice of appeal prevents this Court from acquiring jurisdiction to entertain his appeal.
In his pro se notice of appeal, Appellant indicates he has filed a writ of habeas corpus
1
We interpret this filing as a notice of appeal.
2
The fifteenth day fell on a Sunday so the deadline was extended to Monday, October 28, 2013,
pursuant to Rule 4.1(a) of the Texas Rules of Appellate Procedure.
2
pursuant to article 11.07 of the Texas Code of Criminal Procedure. He may be entitled
to consideration of an out-of-time appeal if he is successful on his writ. See TEX. CODE
CRIM. PROC. ANN. art. 11.07 (West Supp. 2013).
Consequently, this purported appeal is dismissed for want of jurisdiction.
Patrick A. Pirtle
Justice
Do not publish.
3