Opinion
No. 05-09-00013-CR
Opinion issued January 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 3 Collin County, Texas, Trial Court Cause No. 003-89595-07.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
In this case, Daniel Kenneth Bothun was convicted of indecent exposure. Punishment was assessed at 180 days' confinement in jail and a $2000 fine, and was imposed in open court on September 19, 2008. Appellant filed a motion for new trial; therefore his notice of appeal was due by December 18, 2008. See Tex. R. App. P. 26.2(a)(2). Appellant filed his notice of appeal on January 6, 2009 and a motion to extend time to file the notice of appeal on January 7, 2009. To obtain the benefit of the extension period provided by Texas Rule of Appellate Procedure 26.3, appellant had to file his notice of appeal in the trial court within fifteen days of the date the notice of appeal was due and to file within that same fifteen-day period an extension motion in this Court. See Tex. R. App. P. 26.3; Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex.App.-Dallas 1998, no pet.). Appellant states in the extension motion that his notice of appeal was due January 2, 2009, thirty days of the date the motion for new trial was overruled by operation of law, and states that he inadvertently failed to file the notice of appeal until January 6, 2009. However, rule 26.2 specifically runs the date for filing the notice of appeal from the date sentence is imposed or suspended in open court, not the date a motion for new trial is overruled. See Tex. R. App. P. 26.2(a)(2). Therefore, at the very latest, appellant had to file his notice of appeal by Monday, January 5, 2009. Appellant's January 6, 2009 notice of appeal was filed outside the fifteen-day period allowed by rule 26.3, as was the January 7, 2009 extension motion. Therefore, we have no authority to take any action except to dismiss the appeal. See Slaton, 981 S.W.2d at 210; Boyd, 971 S.W.2d at 605-06. Accordingly, we deny appellant's January 7, 2009 motion to extend time to file the notice of appeal. We dismiss the appeal for want of jurisdiction.
The fifteenth day after December 18, 2008 was January 2, 2009. This Court was closed on January 2, 2009. The Court has no official information regarding whether the Collin County Clerk's Office was also closed on January 2, 2009. However, giving appellant the benefit of the doubt, we set the latest date for the filing of his notice of appeal as Monday, January 5, 2009. See Tex. R. App. P. 4.1(a).