Opinion
NO. 12-18-00002-CR
02-06-2018
BRETT MARSHALL FOUNTAIN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE COUNTY COURT UPSHUR COUNTY , TEXAS MEMORANDUM OPINION
Brett Marshall Fountain filed a motion for rehearing of our January 18, 2018 opinion. We overrule the motion for rehearing, withdraw our opinion and judgment of January 18, and substitute the following opinion and corresponding judgment in their place.
This appeal is being dismissed for want of jurisdiction. Brett Marshall Fountain appeals from his conviction for driving while license invalid. Sentence was imposed on September 29, 2017. Under the rules of appellate procedure, the notice of appeal must be filed within thirty days after sentenced was imposed or within ninety days if defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a). According to the Upshur County Clerk's Office, Appellant did not file a motion for new trial. See TEX. R. APP. P. 26.2(a)(2). Therefore, Appellant's notice of appeal was due to have been filed no later than October 30, 2017. Appellant filed his notice of appeal on January 2, 2018.
On January 3, this Court notified Appellant that the information received in this appeal does not show the jurisdiction of this Court, i.e., there was no timely filed notice of appeal or motion for extension of time to file a notice of appeal. See TEX. R. APP. P. 26.2, 26.3. We further notified Appellant that the appeal would be dismissed unless the information was amended on or before January 15 to show the Court's jurisdiction. Appellant filed a response, in which he states that he filed a motion for new trial on October 6, 2017, seven days after sentence was imposed; thus, he maintains that his notice of appeal was timely. He explained that he traveled to Upshur County to review his case file and determined that the file omits nine or more documents that he filed since September 2017, including motions. Appellant states that he "would not be the least bit surprised to learn that the trial court clerk was instructed by the trial court to 'lose' and not file one or more documents."
The clerk of this Court contacted the Upshur County Clerk's Office and learned that the clerk's office has no record of a motion for new trial filed in Appellant's case. The case information sheet from Upshur County also reflects that no motion was filed. Nor has Appellant provided this Court with a file-marked copy of such motion. Under these circumstances, we are unable to conclude that Appellant timely filed a motion for new trial. This Court is not authorized to extend the time for perfecting an appeal except as provided by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 26.2, 26.3; see also Slaton v . State , 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State , 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). Opinion delivered February 6, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the County Court of Upshur County, Texas (Tr.Ct.No. 38,661)
THIS CAUSE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.