Opinion
No. 11-03-00383-CR.
February 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Ector County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
The jury convicted Terry Dwayne Allen of possession of methamphetamine and assessed his punishment at confinement for 2 years at a state jail facility and a $7,500 fine. We dismiss the appeal. The trial court imposed the sentence in open court on October 1, 2003. The notice of appeal was filed on November 20, 2003, 50 days after the date the sentence was imposed in open court. Without a timely motion for new trial, the notice of appeal is out of time. TEX.R.APP.P. 26.2(a). While the clerk's record contains an order refusing to grant a new trial, a motion for new trial is not included in the clerk's record. Further, the trial court's docket sheet makes no reference to the filing of a motion for new trial, and the district clerk's office has notified us that they have no record of a motion for new trial being filed. On December 30, 2003, the clerk of this court wrote the parties explaining that the notice of appeal appeared to be out of time, stating that the clerk of the trial court had informed this court that a motion for new trial had not been filed, and requesting that appellant respond within 10 days showing grounds for continuing the appeal. Appellant has failed to respond. Absent a timely notice of appeal or the granting of a timely motion for extension of time, this court does not have jurisdiction to entertain an appeal. Slaton v. State, 981 S.W.2d 208 (Tex.Cr.App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex.Cr.App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex.Cr.App. 1993); Shute v. State, 744 S.W.2d 96 (Tex.Cr.App. 1988). The notice of appeal is not timely, and a motion for extension has not been filed. Therefore, this court does not have jurisdiction to entertain this appeal. The appeal is dismissed.