Nathan Earl Burgess v. State

DISMISS; and Opinion Filed October 29, 2013.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-01244-CR
NATHAN EARL BURGESS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-86625-2012
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Brown
Opinion by Justice Brown
Nathan Earl Burgess was convicted of illegal dumping in an amount weighing more than
five pounds but less than 500 pounds. See TEX. HEALTH & SAFETY CODE ANN. § 365.012(a), (e)
(West Supp. 2012). Punishment was assessed at twenty days’ confinement in jail, probated for
nine months. Sentence was imposed in open court on July 8, 2013. No timely motion for new
trial was filed 1; therefore, appellant’s notice of appeal was due by August 7, 2013. See TEX. R.
APP. P. 26.2(a)(1). Appellant filed his notice of appeal on August 23, 2013. Because it appeared
appellant’s notice of appeal was untimely, we directed the parties to file letter briefs addressing
our jurisdiction over the appeal. Appellant responded by filing a motion to extend time to file his
notice of appeal and a letter brief. We conclude we lack jurisdiction over the appeal.
1
Appellant’s motion for new trial was due by August 7, 2013. See TEX. R. APP. P. 21.4(a). Appellant filed an untimely motion for new
trial on August 8, 2013.
“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be
legally invoked, and if not, the power of the court to act is as absent as if it did not exist. See id.
at 523. To invoke the Court’s jurisdiction, an appellant must file his notice of appeal within the
time period provided by the rules of appellate procedure. See id.; see also Slaton v. State, 981
S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).
In his extension motion, appellant asserts that Texas Rule of Appellate Procedure 2
allows the Court to alter the time for perfecting the appeal in a criminal case. However, the
Texas Court of Criminal Appeals specifically rejected appellant’s argument that rule 2 could be
used in a criminal case to alter the time for filing a notice of appeal. See Slaton, 981 S.W.2d at
210 (stating rationale in Olivo still valid); Olivo, 918 S.W.2d at 522–23 (rule 2 may not be used
to create jurisdiction where none exists). The court of criminal appeals stated, “[i]f an appeal is
not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the
appeal.” Slaton, 981 S.W.2d at 210.
In his letter brief, appellant asks the Court to consider as a notice of appeal the July 29,
2013 letter from counsel to the court reporter stating appellant’s intent to appeal and asking the
court reporter to prepare the reporter’s record. We conclude the letter to the court reporter does
not satisfy the notice of appeal requirement.
A notice of appeal must be given in writing and filed with the trial court clerk. See TEX.
R. APP. P. 25.2(c)(1). The notice is sufficient if it shows the party’s desire to appeal from the
judgment or other appealable order. See id. 25.2(c)(2). A statement in a letter to a court reporter
that appellant “intends to appeal” does not satisfy the requirement of a notice of appeal. Cf. Baez
v. State, 235 S.W.3d 839, 840–41 (Tex. App.––Texarkana 2007, pet. ref’d) (concluding
statement extracted from trial counsel’s motion to withdraw did not satisfy notice of appeal
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requirement). Moreover, in the letter to the court reporter, appellant’s counsel specifically stated
“[o]ur notice of appeal has not yet been filed, however it will be filed within the next ten days. . .
.” Thus, it is clear that appellant’s counsel anticipated filing a document that was a notice of
appeal and was not relying on the letter to the court reporter to satisfy that requirement. See id.
(document on which appellant relied was not filed for purpose of giving notice of appeal). We
conclude, therefore, that appellant’s letter to the court reporter was not a notice of appeal. See id.
Absent a timely motion for new trial, appellant’s notice of appeal was due by August 7,
2013. See TEX. R. APP. P. 26.2(a)(1). To obtain the benefit of the fifteen-day extension period
provided rule 26.3, appellant had to file, by August 22, 2013, both his notice of appeal in the trial
court and an extension motion in this Court. See TEX. R. APP. P. 26.3(a), (b); Olivo, 918 S.W.2d
at 523. Appellant’s notice of appeal is file-stamped August 23, 2013, one day beyond the
fifteen-day extension period, and the certificate of service is also dated August 23, 2013.
Moreover, appellant did not file his extension motion until September 23, 2013.
Because appellant’s notice of appeal is untimely, we have no authority to take any action
except to dismiss the appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
Accordingly, we deny appellant’s September 23, 2013 motion to extend time to file his notice of
appeal.
We dismiss the appeal for want of jurisdiction.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131244F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NATHAN EARL BURGESS, Appellant On Appeal from the County Court at Law
No. 1, Collin County, Texas
No. 05-13-01244-CR V. Trial Court Cause No. 001-86625-2012.
Opinion delivered by Justice Brown,
THE STATE OF TEXAS, Appellee Justices Moseley and Lang participating.
Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.
Judgment entered this 29th day of October, 2013.
/Ada Brown/
ADA BROWN
JUSTICE
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