Opinion
No. 05-04-01194-CR
Opinion Filed June 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F79-07502-I. Dismiss.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Henry Lopez Aguilar was convicted of aggravated rape and sentenced to life imprisonment. The trial court's judgment was affirmed in 1982. See Aguilar v. State, No. 05-81-00796-CR (Tex.App.-Dallas July 7, 1982, no pet.) (per curiam) (not designated for publication). In 2003, appellant filed a motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. The motion was denied on June 9, 2004. Therefore, appellant's notice of appeal was due by July 9, 2004. See Tex.R.App.P. 26.2(a)(1); Welsh v. State, 108 S.W.3d 921, 922-23 (Tex.App.-Dallas 2003, no pet.). Appellant's notice of appeal was filed on July 13, 2004, four days late, and no extension motion was filed in this Court. See Tex.R.App.P. 26.3. We, therefore, directed the parties to file letter briefs regarding our jurisdiction over the appeal. Appellant asserts that we have jurisdiction because, although the notice of appeal was mailed to his attorney, the trial judge "willingly accepted delivery" of the notice of appeal. Therefore, appellant contends, pursuant to rule of appellate procedure 9.2(a)(2), this Court retains jurisdiction over the appeal. The State responds that rule 9.2(a)(2) applies only to appellate court judges and that rule 25.2(c)(1) requires that the notice of appeal in a criminal case be filed with the trial court clerk. The State further asserts that even if rule 9.2(a)(2) applies, there is nothing in the record to show the trial judge received the notice of appeal on or before July 9, 2004. We agree with the State. Rule 9.2(b) provides that documents filed by mail are considered timely if they are received within ten days of their due date, and among other things, they were "sent to the proper clerk." See Tex.R.App.P. 9.2(b). The rule does not make an exception for documents mailed to an attorney and later delivered to the trial court judge. See id. Because appellant's notice of appeal was admittedly not sent to the proper clerk, appellant may not claim the benefit of the rule 9.2(b). Moreover, rule 9.2(a) does not apply to documents filed in the trial court. The plain language of the rule states, "A document is filed in an appellate court by delivering it to a justice or judge of that court who is willing to accept delivery." Tex.R.App.P. 9.2(a)(2) (emphasis added). Appellant's notice of appeal was not delivered to a justice of this Court for filing, nor would that be a proper filing under the rules of appellate procedure. Rule 25.2 requires that the notice of appeal in a criminal case be filed with the trial court clerk. See Tex.R.App.P. 25.2(c)(1). Although appellant's July 13, 2004 notice of appeal was file-stamped within the fifteen-day period provided by rule 26.3(a), appellant did not file an extension motion in this Court within that same period. See Tex.R.App.P. 26.3(b). Therefore, appellant's notice of appeal was untimely, leaving us without jurisdiction over the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex.App.-Dallas 1998, no pet.). We dismiss the appeal for want of jurisdiction.