Kimbel Vershon Carter v. State

Appeal Dismissed and Memorandum Opinion filed March 25, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00088-CR
KIMBEL VERSHON CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1492023
MEMORANDUM OPINION
The record reflects we lack jurisdiction over this appeal because the notice
of appeal was not filed timely. See Tex. R. App. P. 26.2(a). Appellant was
convicted of aggravated robbery with a deadly weapon and sentenced to prison for
five years on October 18, 2018. No timely motion for new trial was filed.
Accordingly, the notice of appeal was due within 30 days of that date, November
17, 2018. See Tex. R. App. P. 26.1(a)(1). Because November 17, 2018, was a
Saturday, a notice of appeal filed on or before November 19, 2018, would have
been timely. Appellant’s notice of appeal was executed, according to his unsworn
declaration under penalty of perjury, on November 18, 2018. Appellant’s pro se
notice of appeal was not filed until January 23, 2019.
Rule 9 of the Texas Rules of Appellate Procedure states the requirements
pertaining to filing of documents by mail, including the defendant’s notice of
appeal. Tex. R. App. P. 9.; see also Taylor v. State, 424 S.W.3d 39, 45-46 (Tex.
Crim. App. 2014). Rule 9 provides a document is considered timely filed when it
was deposited in the mail on or before the last day for filing. Tex. R. App. P.
9.2(b)(1)(c). When a defendant in custody files a pro se notice of appeal by mailing
it on or before the due date, the notice of appeal does not have to be received by
the clerk within 10 days of the date when it was due per Rule 9.2(b)1). See
Campbell v. State, 320 S.W.3d 338, 341-43 (Tex. Crim. App. 2010). Under this
adaption of Rule 9.2(b)(1), known as the “prisoner mailbox rule,” a pro se notice of
appeal from a defendant in custody is deemed timely filed so long as it was
delivered to prison officials for mailing on or before its due date, and otherwise
complies with Rule 9.2(b). Tex. R. App. P. 9.2(b); Campbell, 320 S.W.3d at 342-
43. The record before this court does not indicate appellant delivered his notice of
appeal to prison officials for mailing on or before the due date of November 19,
2018. See Campbell, 320 S.W.3d at 343. Accordingly, appellant’s notice of appeal
is not deemed timely filed under the prisoner mailbox rule.
A court of appeals may grant an extension of time if, within 15 days after the
deadline for filing the notice of appeal, the party files (a) the notice of appeal in the
trial court, and (b) a motion for extension of time in the court of appeals. See Tex.
R. App. P. 26.3; see also Tex. R. App. P. 10.5(b)(2) (governing motion for
extension of time to file notice of appeal). Appellant’s notice of appeal was not
filed within 15 days of the deadline.
2
A notice of appeal that complies with the requirements of Rule 26.2 is
essential to vest the court of appeals with jurisdiction. Slaton v. State, 981 S.W.2d
208, 210 (Tex. Crim. App. 1998). When a notice of appeal is not filed within the
15-day period, the court of appeals can take no action other than to dismiss the
appeal for lack of jurisdiction. See id; see also Ater v. Eighth Court of Appeals,
802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that writ of habeas corpus
pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-
time appeals from felony convictions).
On December 22, 2020, the parties were notified that the appeal would be
dismissed for lack of jurisdiction unless a party demonstrated that the court has
jurisdiction. No response has been received. We dismiss the appeal.
Further, we dismiss the State’s pending motions to dismiss the appeal and
extend time to file its brief as moot.
PER CURIAM
Panel consists of Justices Jewell, Poissant and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
3