Simmons v. State

Full title: TARSHA SIMMONS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Sixth District, Texarkana

Date published: Jul 29, 2008

No. 06-08-00099-CR (Tex. App. Jul. 29, 2008)

Opinion

No. 06-08-00099-CR

Date Submitted: July 7, 2008.

Date Decided: July 29, 2008. DO NOT PUBLISH.

On Appeal from the 276th Judicial District Court Morris County, Texas, Trial Court No. 9388.

Hon. James P. Finstrom, Attorney at Law, Jefferson, TX. Hon. Steve Cowan, District Attorney, Daingerfield, TX.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

MEMORANDUM OPINION

JACK CARTER, Justice.

Tarsha Simmons attempts to appeal the revocation of her community supervision for the underlying offense of driving while intoxicated with a child passenger. See TEX. PENAL CODE ANN. § 49.045 (Vernon Supp. 2007). Simmons was sentenced to eighteen months' confinement. Her sentence was imposed March 12, 2008. An appeal bond, which we deem to be her notice of appeal, was filed May 2, 2008. We received the clerk's record July 1, 2008. The issue before us is whether Simmons timely filed her notice of appeal. We conclude that she did not and dismiss the attempted appeal for want of jurisdiction. 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). Rule 26.2(a) prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a); Olivo, 918 S.W.2d at 522. The record does not contain any motion for new trial. The last date Simmons could timely file her notice of appeal was April 11, 2008, thirty days after the day the sentence was imposed in open court. See TEX. R. APP. P. 26.2(a)(1). Further, no motion for extension of time was filed in this Court within fifteen days of the last day allowed for filing the notice of appeal. Simmons has failed to perfect her appeal. Accordingly, we dismiss the appeal for want of jurisdiction.

OPINION ON REHEARING

Tarsha Simmons has filed a motion for rehearing from our dismissal for want of jurisdiction. We dismissed the appeal because the appeal bond, which we deemed to be her notice of appeal, was untimely filed. We have now received a supplemental clerk's record containing a timely-filed notice of appeal. We withdraw our opinion dated July 8, 2008, and reinstate the appeal on the docket of this Court. The Court entered its order this date in the referenced proceeding whereby Appellant's Motion for Rehearing was GRANTED. Enclosed is this Court's Opinion on Rehearing. APPELLANT'S BRIEF WILL BE DUE ON OR BEFORE 8/28/08. PLEASE TAKE DUE NOTICE HEREOF.