Michael Dale Terry v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00191-CR
MICHAEL DALE TERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 4th District Court
Rusk County, Texas
Trial Court No. CR18-289
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Michael Dale Terry has filed an untimely notice of appeal from a conviction of driving
while intoxicated, third or more. 1 We dismiss the appeal for want of jurisdiction.
The judgment of conviction in this matter indicates that Terry’s sentence was imposed on
July 18, 2019, and that his notice of appeal was filed on September 17, 2019. There is nothing in
the appellate record to indicate that Terry filed a motion for new trial. In the absence of a timely
motion for new trial, Terry, to perfect his appeal, was required to file his notice of appeal within
thirty days of the date sentence was imposed, or on or before August 19, 2019. See TEX. R. APP.
P. 26.2(a)(1). The notice of appeal, therefore, was untimely.
We notified Terry by letter that his notice of appeal appeared to be untimely and that the
appeal was subject to dismissal for want of jurisdiction. We gave Terry ten days to respond to our
letter and to demonstrate how we have jurisdiction over the appeal notwithstanding the noted
defect. Counsel for Terry responded, stating that he was unaware of his appointment as Terry’s
counsel until September 9, 2019. Counsel for Terry requests that this Court grant leave to file an
out-of-time appeal.
While we are not unsympathetic to the fact that counsel only learned of his appointment
after the appeal deadline, we lack authority to create jurisdiction where none exists. The Texas
Court of Criminal Appeals has expressly held that, without a timely notice of appeal, we cannot
exercise jurisdiction over an appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.
1996); see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998).
1
See TEX. PENAL CODE ANN. § 49.09(b) (Supp.).
2
Because Terry did not timely file his notice of appeal, we dismiss the appeal for want of
jurisdiction.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 10, 2019
Date Decided: October 11, 2019
Do Not Publish
3