Wesley Don Parish v. State

NO. 12-11-00141-CR

IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

WESLEY DON PARISH,                                  §                 APPEAL FROM THE 159TH

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §                 ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

     This appeal is being dismissed for want of jurisdiction.  Appellant was convicted of two counts of aggravated sexual assault of a child, and sentence was imposed on March 25, 2011.    

            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).  Where a timely motion for new trial has been filed, notice of appeal must 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 April 25, 2010.  However, Appellant did not file his notice of appeal until May 9, 2011, and did not file a motion to extend the time for filing the notice of appeal as provided 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 May 10, 2011, 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 May 20, 2011, the information filed in this appeal was amended to show the jurisdiction of this court. 

On May 13, 2011, Appellant filed a motion for extension of time to file his notice of appeal, which included an explanation of why the extension was necessary. However, Appellant’s deadline for filing a motion to extend the time for filing his notice of appeal was May 10, 2011.  See Tex. R. App. P. 26.3.  Because Appellant’s motion was not filed until May 13, 2011, the motion was untimely, and this court must overrule it.

            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 Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (“When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction.”). Accordingly, Appellant’s motion for extension of time is overruled, and the appeal is dismissed for want of jurisdiction. 

Opinion delivered May 25, 2011.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)