Opinion
No. 01-07-00656-CV
Opinion Issued August 14, 2008.
On Appeal from the 334th Judicial District Court Harris County, Texas, Trial Court Cause No. 2006-68112.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
MEMORANDUM OPINION
Appellant, Anh Viet Tran ("Tran"), a prison inmate, appeals pro se and in forma pauperis from the dismissal of his claims against Charles A. Rosenthal, Jr. ("Rosenthal"). Tran's petition, alleging claims of false imprisonment and inverse condemnation, was dismissed by the trial court as frivolous, pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. REM. CODE ANN. § 14.003 (Vernon 2002). Tran appeals the dismissal.
We dismiss the appeal for lack of jurisdiction.
Background
On June 22, 1995, Tran was found guilty of capital murder after a jury trial and was sentenced to life in prison. We affirmed Tran's conviction on June 6, 1996, and the Texas Court of Criminal Appeals refused his petition for discretionary review. Tran v. State, No. 01-95-00709-CR, 1996 WL 303563 (Tex.App.-Houston [1st Dist.] June 6, 1996, pet. ref'd). Tran filed three state applications and one federal petition for writ of habeas corpus, all of which were denied.
State application WR-39,776-01 was filed November 23, 1998 and denied withoutwritten order on the findings of the trial court on December 9, 1998; WR-39,776-02was filed December 30, 2005 and denied without written order on September 20, 2006; and WR-39,776-03 was filed August 10, 2006 and denied without written orderon September 20, 2006. A federal petition for writ of habeas corpus was filed on May30, 2007, which was denied.
On October 20, 2006, Tran filed the underlying lawsuit, alleging that he had been "erroneously convicted of Capital Murder" and that he should be "exonerated or pardoned" because a co-defendant's affidavit establishes his innocence. By his suit against Rosenthal, appellant sought seven million dollars in damages for "false imprisonment" and "inverse condemnation."
To the contrary, co-defendant John B. Le attested that he was with Tran at the sceneof the murder and that he heard Tran fire his weapon two or three times.
On June 8, 2007, the trial court granted Rosenthal's motion to dismiss Tran's suit on the basis that the suit was frivolous, pursuant to Section 14.003(a)(2). See id. Tran filed a notice of appeal on August 9, 2007. Rosenthal contends that Tran's notice of appeal is untimely and that, therefore, this Court does not have jurisdiction to consider Tran's appeal. We agree.
Discussion
A notice of appeal must be filed within 30 days after the date that a judgment is signed. TEX. R. APP. P. 26.1. This time period is extended to 90 days if any party files: (1) a motion for new trial; (2) a motion to modify judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court. TEX. R. APP. P. 26.1(a). An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. 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); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex.App.-Houston [1st Dist.] 1999, no pet.)
Here, the trial court signed the judgment in Tran's case on June 8, 2007. Therefore, Tran's notice of appeal was due by July 9, 2007. Tran filed his notice of appeal on August 9, 2007, which was 31 days after the expiration of the time period during which any notice of appeal must be filed. Tran did not move for extension of time to file his notice of appeal. See TEX. R. APP. P. 26.3 (allowing motion for extension of time to file notice of appeal within 15 days of notice's due date). Accordingly, Tran's notice of appeal was untimely, and we lack jurisdiction to hear this appeal.
Conclusion
We dismiss the appeal for lack of jurisdiction. All other pending issues in this appeal are overruled as moot. The Clerk is directed to issue the mandate. See TEX. R. APP. P. 18.1.