State v. Sheryl Kay Reynolds

NUMBER 13-00-446-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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THE STATE OF TEXAS, Appellant,

v.

SHERYL KAY REYNOLDS, Appellee.

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On appeal from the 103rd District Court of Willacy County, Texas.

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OPINION

Before Chief Justice Seerden and Justices Hinojosa and Kennedy⁽¹⁾

Opinion Per Curiam

To perfect appeal in a criminal case and invoke the appellate court's jurisdiction, the appellant must timely file a notice of appeal. See Tex. R. App. P. 25.2(a); Olivio v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). When the State is the appellant, the notice must comply with code of criminal procedure article 44.01, which grants the State the authority to appeal certain adverse trial court rulings. See Tex. Code Crim. Proc. Ann art. 44.01 (Vernon Supp. 2000); Tex. R. App. P. 25.2(b)(2). Under article 44.01(d) the State must file its notice of appeal no later than the fifteenth day after entry of the order. See Tex. Code Crim. Proc. Ann. art. 44.01(d) (Vernon Supp. 2000). This is a substantive limitation of the State's right to appeal and cannot be expanded by the rules of appellate procedure. See State v. Muller, 829 S.W.2d 805, 812 (Tex. Crim. App. 1992).

In this case, the trial court entered the order on June 12, 2000, making the notice of appeal due on June 27, 2000. See Tex. Code Crim. Proc. Ann. art. 44.01; Tex. R. App. P. 25.29(b)(2). Relying on rule 26.3 of the rules of appellate procedure, which allows an appellate court to extend the time to file the notice of appeal if certain conditions are met, the State filed its notice of appeal on July 10, 2000, twenty-eight days after entry of the order, and thereafter filed a motion for extension on July 11, 2000.

However, the State may not avail itself of the extension period provided under rule 26.3. The State's statutory authority to appeal expired June 27, 2000, the fifteenth day after entry of the order, and could not be revived by a motion for extension. See State v. Carson, 13 S.W.3d 811, 812-13 (Tex.App.-Fort Worth 2000, no pet.); State v. Rollins, 4 S.W.3d 453, 454 (Tex. App.-Austin 1999, no pet.). Accordingly, we deny appellant's motion for extension of time to file its notice of appeal and dismiss the appeal for want of jurisdiction.

PER CURIAM

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 27^th day of July, 2000.

1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).