Opinion
No. 05-03-00129-CR
Opinion Filed July 18, 2003 Do Not Publish
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-80716-01. DISMISS
Before Justices Morris, Wright, and Moseley
MEMORANDUM OPINION
Jamie Marshall Brown was convicted of indecency with a child by contact. A sentence of five years' confinement was imposed in open court on October 23, 2002. Appellant filed a motion for new trial on November 26, 2002 and an untimely amended motion for new trial on December 3, 2002. The trial court conducted a hearing on appellant's motion for new trial on January 10, 2003 and overruled the motion. Appellant filed his notice of appeal on January 27, 2003. In response to our letter questioning our jurisdiction over the appeal, appellant responded that although the judgment reflects that sentence was imposed on October 23, 2002, the judgment was signed on October 29, 2002. Appellant attached to his jurisdictional letter brief a printout from the Collin County District Clerk's Office showing that appellant was sentenced on October 29, 2002. This entry appears to be based on the date the trial court's judgment was signed. However, the operative date is not the date the judgment was signed; it is the date sentence was imposed or suspended in open court. See Tex.R.App.P. 26.2(a); Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex.Crim.App. 1993). Appellant asserts, in the alternative, that Rodarte no longer controls because the rules of appellate procedure have been amended since Rodarte issued. The comments to rule 26 specify that "[n]onsubstantive changes are made in the rule for criminal cases." See Tex.R.App.P. 26 comment to 1997 change. Although the notes and comments are not part of the rules themselves, they reveal the effect the drafters believed the changes would have. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam). Thus, although changes may have been made when enacting rule 26.2, the changes were nonsubstantive and do not affect the continued applicability of Rodarte. Appellant's sentence was imposed in open court on October 23, 2002. Therefore, the time period for appellant to file his notice of appeal commenced on that date. Assuming, without deciding, appellant's November 26, 2003 motion for new trial was timely, appellant's notice of appeal was due by January 21, 2003. Appellant filed his notice of appeal on January 27, 2003. Nothing in the record reflects it was mailed to the trial court on or before January 21, 2003, nor does appellant assert in his jurisdictional brief that such occurred. Moreover, although the notice of appeal was filed within the fifteen-day period provided by rule 26.3, appellant did not file a motion in this Court seeking an extension of time to file his notice of appeal. See Tex.R.App.P. 26.3. Because appellant's January 27, 2003 notice of appeal is untimely, we lack jurisdiction over the appeal. See Slaton v. State, 981 S.W.2d at 210; 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.). Accordingly, we dismiss the appeal for want of jurisdiction.
We question whether the November 26, 2002 motion for new trial was timely. Under rule 21.4, appellant's motion for new trial was due by November 22, 2003. See Tex.R.App.P. 21.4(a). The certificate of mailing to the Collin County District Attorney's Office reflects a mailing date of November 22, 2002. However, nothing in the record reflects the motion was also mailed to the Collin County District Clerk's Office. However, because of the disposition of the appeal, we will assume, without deciding, that the November 26, 2002 motion for new trial was mailed to the District Clerk on or before November 22, 2003. See Tex.R.App.P. 9.2(b).
An amended motion for new trial must be filed within thirty days after the date sentence is imposed in open court. See Tex.R.App.P. 21.4(b). The amended motion for new trial in this case was filed forty-one days after sentence was imposed in open court.
Pursuant to rule 21.8, the motion for new trial was overruled by operation of law on January 6, 2003. See Tex.R.App.P. 21.8(a), (c) (motion for new trial not ruled on by written order within seventy-five days after sentence imposed deemed denied). Therefore, the January 10, 2003 hearing on appellant's motion for new trial and the trial court's oral denial of the motion are a nullity.