Opinion
No. 12-03-00065-CR.
Opinion delivered April 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the County Court at Law of Smith County, Texas.
Before WORTHEN, C.J. and GRIFFITH, J.
MEMORANDUM OPINION ON REHEARING
Appellant was convicted of assault causing bodily injury to a family member, and sentence was imposed in open court on November 22, 2002. On December 18, 2002, Appellant timely filed a motion for new trial, making her notice of appeal due on February 20, 2003. TEX. R. APP. P. 26.2(a)(2) (notice of appeal must be filed within ninety days after sentence imposed if timely motion for new trial filed). Appellant did not file her notice of appeal until February 21, 2003, one day after the filing deadline. On February 26, 2003, this court notified Appellant that the notice of appeal was not filed within the time allowed by rule 26.2 and that the notice was not accompanied by a timely motion for an extension of time for filing. See TEX. R. APP. P. 26.3. Appellant was further notified that the appeal would be dismissed unless the information received was amended to show the jurisdiction of this court on or before March 10, 2003. However, Appellant failed to demonstrate the jurisdiction of this court within the allotted time, and the appeal was dismissed. Crockett v. State, No. 12-03-00065-CR (Tex.App.-Tyler March 21, 2003, no pet. h.) (not designated for publication), 2003 WL 1461472. On March 28, 2003, Appellant filed a motion for rehearing alleging that the notice of appeal was untimely because Appellant miscalculated the filing deadline upon filing the initial notice and again after receiving this court's February 26 notice. Appellant's motion for rehearing was accompanied by a motion for extension of time to file her notice of appeal. A timely notice of appeal is necessary to invoke this court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim. App. 1996). A court of appeals may grant an extension of time to file a notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals requesting an extension of time to file the notice and reasonably explaining the need for the extension. TEX. R. APP. P. 26.3; Olivo, 918 S.W.2d at 522. Thus, a late notice of appeal may be considered timely so as to invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing the notice, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo, 918 S.W.2d at 522. In the instant case, the last day for timely filing the notice of appeal was February 20, 2003, ninety days after the day the sentence was imposed in open court. TEX. R. APP. P. 26.2(a)(1). Although Appellant filed her notice of appeal on February 21, 2003, which was within fifteen days after the deadline for filing the notice of appeal, she did not file her motion for extension of time within the fifteen-day period. Consequently, Appellant did not comply with the requirements of rule 26.3, thereby failing to perfect her appeal. When an appeal is not timely perfected, a court of appeals can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Accordingly, we deny Appellant's motion for extension of time to file a notice of appeal and the motion for rehearing.