Opinion
Nos. 01-03-01083-CR, 01-03-01200-CR, 01-03-01201-CR, 01-03-01202-CR
Opinion issued January 8, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 23rd District Court, Brazoria County, Texas, Trial Court Cause No. 38,902 (Counts 1, 2, 3, and 4).
Panel consists of Chief Justice RADACK, and Justices JENNINGS and HIGLEY.
MEMORANDUM OPINION
We are without jurisdiction to entertain these appeals. Appellant was sentenced in these cases on June 19, 2003. A motion for new trial was timely filed on July 18, 2003. The deadline for filing notice of appeal was therefore September 17, 2003, 90 days after sentencing. See Tex.R.App.P. 26.2(a)(2). On September 30, 2003, 13 days after the deadline, appellant filed his notice of appeal and a motion for extension of time to file notice of appeal in the trial court. The rule is clear, however, that the motion for extension of time must be filed in the court of appeals and granted by that court. The trial court was without jurisdiction to rule on the motion for extension of time. Moreno v. State, 954 S.W.2d 97, 98 (Tex. App.-San Antonio 1997, no pet.); Jones v. State, 900 S.W.2d 421, 422 (Tex. App.-Texarkana 1995, no pet.). There is no indication in this record that he did so. When the notice of appeal is filed in the trial court within 15 days after the filing deadline, a motion for extension of time to file the notice of appeal must also be filed in the court of appeals and granted. Otherwise, the appellate court lacks jurisdiction over the appeal. Moreno, 954 S.W.2d at 98; Jones, 900 S.W.2d at 423;see also Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). We therefore dismiss the appeals for lack of jurisdiction. It is so ORDERED.
Rule 26.3 states:
Extension of Time. The appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party:
(a) files in the trial court the notice of appeal; and
(b) files in the appellate court a motion complying with Rule 10.5(b).
Tex.R.App.P. 26.3. (Emphasis added.)
Moreno and Jones were decided under former Rule 41(b)(2) of the Texas Rules of Appellate Procedure. That rule provided:
An extension of time for filing notice of appeal may be granted by the court of appeals if such 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 reasonably explaining the need for such extension.
Tex.R.App.P. 41(b)(2), 707-708 S.W.2d (Texas Cases) XXIX, LIII-IV (Tex.Crim.App. 1986) (revised effective Sept. 1, 1997). (Emphasis added.) Both former Rule 41(b)(2) and present Rule 26.3 require that the motion for extension of time to file notice of appeal be filed in the appellate court.