Michael Steven Stone, Jr. v. State

NO. 07-06-0401-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 13, 2006 ______________________________

MICHAEL STEVEN STONE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 46,552-A; HONORABLE HAL MINER, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Pursuant to a guilty plea, appellant Michael Steven Stone was convicted of aggravated sexual assault of a child. His twelve-year sentence was imposed on March 7, 2003. He now seeks to appeal his conviction. We dismiss for want of jurisdiction.

A notice of appeal in a criminal case is required to be filed within 30 days after the day sentence is imposed or suspended in open court, or within 90 days if a timely motion for new trial is filed. Tex. R. App. P. 26.2(a). Rule 26.3 allows for an extension of time if the appellant files a notice of appeal with the trial court within 15 days after the deadline for filing the notice and files a motion for extension of time in the appellate court. In the absence of a timely notice of appeal, a court of appeals is without jurisdiction to address the merits of an appeal and can take no action other than to dismiss the appeal. 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).

The judgment reflects appellant was sentenced on March 7, 2003, making the deadline by which to file the notice of appeal April 7, 2003. ⁽¹⁾ Appellant's pro se document expressing an intent to appeal his conviction was filed on October 5, 2006. ⁽²⁾ Appellant's notice is untimely and does not invoke our jurisdiction.

Consequently, the appeal is dismissed for want of jurisdiction.

James T. Campbell

Justice

Do not publish.

1. The 30th day fell on Sunday, April 6, 2003, extending the deadline to the following day per Rule 4.1 of the Texas Rules of Appellate Procedure.

2. We additionally note that Rule of Appellate Procedure 25.2(c) provides that a notice of appeal in a criminal case is to be filed with the trial court clerk.

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NO. 07-09-0278-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 22, 2010

______________________________

EX PARTE JAMES G. MILLER

_________________________________

FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009547,036; HONORABLE SAM MEDINA, JUDGE

_______________________________

Before QUINN, HANCOCK and PIRTLE, JJ.

DISSENTING OPINION

            I join the majority in finding that the trial court had jurisdiction to hear this matter; however, I write separately to dissent from the majority's finding that the trial court did not erroneously dismiss this case.  A statutory expunction proceeding is civil rather than criminal in nature.  Collin County Criminal District Attorney's Office v. Dobson, 167 S.W.3d 625 (Tex.App.--Dallas 2005, no pet.).  On July 15, 2009, the trial court scheduled this matter for a hearing.  Twelve days later, on July 27th, 2009, the trial court summarily entered an order of dismissal.  A trial court erroneously dismisses a civil proceeding when it dismisses a proceeding without appropriate due process.  Because Appellant was not afforded the opportunity of a hearing or the procedural benefits of a summary judgment proceeding, I would reverse the order of the trial court and remand for further proceedings.

                                                                                      Patrick A. Pirtle                                                                                                                                       Justice