Andrew Colby Livingston v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00381-CR
___________________________
ANDREW COLBY LIVINGSTON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 235th District Court
Cooke County, Texas
Trial Court No. CR17-00284
Before Sudderth, C.J.; Walker and Meier, JJ.
Memorandum Opinion by Chief Justice
Sudderth
MEMORANDUM OPINION
Appellant Andrew Colby Livingston attempts to appeal his conviction for
continuous sexual abuse of a child under the age of 14. See Tex. Penal Code Ann.
§ 21.02 (West Supp. 2018). Appellant was convicted on July 11, 2018, making his
notice of appeal due August 10, 2018. See Tex. R. App. P. 26.2(a)(1). He did not file a
notice of appeal until August 24, 2018.
By letter dated August 28, 2018, we notified Livingston of our concern that we
may not have jurisdiction because the notice of appeal was not timely filed and
requested a response showing grounds for continuing the appeal. We warned that a
failure to do so could result in our dismissing the appeal for lack of jurisdiction. See
Tex. R. App. P. 44.3. On September 5, 2018, Livingston’s counsel filed a motion to
extend time to file a late notice of appeal. But see Olivo v. State, 918 S.W.2d 519, 524
(Tex. Crim. App. 1996) (holding that the failure to file a motion for extension of time
within the 15 days of the deadline for the notice of appeal deprives the reviewing
court of jurisdiction). In it, she asserted that she was confident that a motion for new
trial was e-filed on August 6, 2018, thereby extending the time for filing a notice of
appeal, but that she later realized that the motion was not accepted or filed by the
Cooke County District Clerk. See Tex. R. App. P. 26.2(a)(2), 26.3. By letter dated
September 13, 2018, we requested that Livingston’s counsel provide us with
confirmation of service of the motion for new trial from the electronic filing manager
or other confirmation that the motion for new trial was tendered to the electronic
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filing manager. See generally, Tex. R. App. P. 9.2(c)(4), (6). Livingston’s counsel filed a
response but it did not include any such confirmation.
We therefore dismiss the appeal for want of jurisdiction. See Tex. R. App. P.
43.2(f), 44.3.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 11, 2018
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