Opinion
05-23-00857-CR
10-02-2023
LAWRENCE EDWARD BELL, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-83702-2022
Before Chief Justice Burns, Justice Nowell, and Justice Garcia
MEMORANDUM OPINION
ROBERT D. BURNS, III CHIEF JUSTICE
This Court lacks jurisdiction over this appeal because there is no appealable order and appellant's notice of appeal is not timely.
The clerk's record for this appeal, trial court cause number 401-83702-2022, shows appellant was indicted for murder on October 6, 2022. A docket sheet entry on March 20, 2023, recites that the State elected to proceed under cause number 401-81917-2022, and the trial court ordered all filings in cause number 401-83702-2022 (the case on appeal) transferred to cause number 401-81917-2022. The docket sheet indicates there was a jury trial on March 21, 2023. On March 27, 2023, appellant filed a motion for new trial and motion in arrest of judgment stating he was sentenced on March 24, 2023. On April 12, 2023, the State filed a Motion to Dismiss Prosecution, stating, "The State is requesting that this case be dismissed due to the jury trial proceeding under the original indictment under cause 401-81917-2022. The defendant was sentenced to 99 years in TDCJ." On April 13, 2022, the trial court granted the State's Motion to Dismiss Prosecution.
Appellant filed a pro se document on August 30, 2023. The document is dated August 23, 2023, by appellant and states, "I'm writing you in regards to case 401-83702-2022. I will be appealing this case on the right to an impartial jury and need to know the 2022 census for African Americans in [C]ollin [C]ounty. Please send me the information ASAP." This Court treats the document as a notice of appeal filed August 30, 2023.
A defendant perfects his appeal by timely filing a written notice of appeal with the trial court clerk. See Tex. R. App. P. 25.2(c). To be timely, the notice of appeal must be filed within thirty days after the date sentence was imposed or within ninety days after sentencing if the defendant timely filed a motion for new trial. See Tex. R. App. P. 26.2(a). A motion for new trial must be filed no later than thirty days after sentence is imposed or suspended in open court. Tex.R.App.P. 21.4(a). The rules of appellate procedure allow the time to file a notice of appeal to be extended if the party files, within fifteen days of the filing deadline, the notice of appeal in the trial court and a motion to extend the time to file the notice of appeal in the court of appeals. See Tex. R. App. P. 10.5(b), 26.3. In the absence of a timely perfected notice of appeal, the Court must dismiss the appeal for lack of jurisdiction. Ex parte Castillo, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).
It appears appellant was actually convicted and sentenced on March 24, 2023, in cause number 401-81917-2022, and the charge in this case, cause number 401-83702-2022, was dismissed. It appears there was confusion concerning the cause number under which appellant was convicted, and the motion for new trial and notice of appeal were filed in the wrong cause number. However, the documents in the clerk's record indicate appellant was sentenced on March 24, 2023, he timely filed a motion for new trial under the wrong cause number on March 27, 2023, but his notice of appeal was filed 159 days after sentencing on March 24, 2023. Therefore, even if we treat the documents as an appeal from appellant's conviction in cause number 401-81917-2022, the notice of appeal filed August 30, 2023, was not timely to perfect appellant's right of appeal. Also, if we treated the notice of appeal as filed on the postmark date, August 24, 2023, or the date appellant wrote on the notice of appeal, August 23, 2023, the notice of appeal would still not be timely. August 23 and 24, 2023, were, respectively, 152 and 153 days after appellant was sentenced on March 24, 2023, which was outside the ninety-day filing time for the notice of appeal.
To the extent appellant may seek to appeal the April 13, 2023 dismissal of the prosecution in cause number 401-83702-2022, that is not an appealable order. Petty v. State¸ 800 S.W.2d 582, 583-84 (Tex. App.-Tyler 1990, no pet.) (per curiam). Furthermore, the notice of appeal filed August 30, 2023, was 139 days after the April 13, 2023 order dismissing the prosecution; the August 24, 2023 postmark on the notice of appeal was 133 days after April 13, 2023 order; and the August 23, 2023 date written on the notice of appeal was 132 days after the April 13, 2023. All of these dates were outside the ninety-day filing time for the notice of appeal.
We dismiss this appeal for want of jurisdiction.
JUDGMENT
Justices Nowell and Garcia participating.
Based on the Court's opinion of this date, this appeal is DISMISSED for want of jurisdiction.