Opinion
No. 10-05-00011-CR
Opinion delivered and filed March 23, 2005. DO NOT PUBLISH.
Appeal From the 54th District Court, McLennan County, Texas, Trial Court # 2003-667-C. Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM Opinion
Following a jury verdict, the trial court imposed Jimmy Earl Parr's 17-year sentence for robbery on December 1, 2004. Parr did not file a motion for new trial and filed his notice of appeal on January 11, 2005, more than thirty days after imposition of sentence. Thus, Parr's notice of appeal is untimely. See TEX. R. APP. P. 26.2(a)(1). Parr filed a motion for extension of time to file the notice of appeal on February 17, 2005, more than thirty days after the notice of appeal. Thus, Parr's motion for extension is untimely. Id. 26.3. Parr cites Bayless v. State for the proposition that he should be permitted to file an amended notice of appeal which cures the previously untimely notice of appeal. 91 S.W.3d 801, 805-06 (Tex.Crim.App. 2002); see also Tex.R.App.P. 25.2(f) (amended notice of appeal may be filed "at any time before the appealing party's brief is filed" without leave of court). However, Bayless itself answers Parr's assertion. The Court held, "Thus, the Rules are clear; if a defendant files a timely general notice of appeal, amendments to the notice can be made any time prior to the filing of the defendant's brief." Bayless, 91 S.W.3d at 806 (emphasis added). Parr's initial notice of appeal was untimely. Thus, he cannot amend the notice to cure this jurisdictional defect. Cf. id.; see also Oldham v. State, 977 S.W.2d 354, 359 (Tex.Crim.App. 1998) (Rule 2(b) may not be used to "enlarge appellate time limits"). Because Parr's notice of appeal and his motion for extension are both untimely, the motion is denied, and the appeal is dismissed. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996).