Opinion
No. 14-02-00827-CR
Opinion filed December 23, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 228th District Court, Harris County, Texas, Trial Court Cause No. 899,581. Dismissed.
Panel consists of Justices YATES, HUDSON, and FOWLER.
MEMORANDUM OPINION
Appellant Marco Antonio Coronado pled guilty to two felony offenses of aggravated robbery with a deadly weapon, namely a firearm. On June 18, 2001, the trial court judge sentenced appellant to thirty years' confinement. Appellant did not file a motion for new trial. Hence, appellant's deadline to perfect his appeal was July 18, 2001. He mailed a pro se notice of appeal, postmarked July 17, 2001. The Fourteenth Court of Appeals received the notice on July 18, 2001. However, it was not filed with the trial court until August 1, 2001, forty-four days after the appellant was sentenced. Appellant did not file a motion for extension of time to file his notice of appeal. We dismiss this case for want of jurisdiction. A notice of appeal must be timely filed with the trial court clerk. TEX. R. APP. P. 25.2(b), (c)(1). Although the rule governing civil cases provides that if it is mistakenly filed with the appellate court, the notice of appeal "is deemed to have been filed the same day with the trial court clerk," there is no analogous savings provision with respect to criminal cases. Compare TEX. R. APP. P. 25.1(a), with TEX. R. APP. P. 25.2(b), (c). Hence, a notice filed with the appellate court in a criminal case within the appellate deadline is not deemed filed the same day with the trial court. Thus, appellant's filing of a notice with this court had no effect on his time to file a notice of appeal with the trial court. In this case, the notice of appeal was not received by the trial court until August 1, 2001, forty-four days after the appellant was sentenced. Because he did not file a motion for new trial, appellant's notice of appeal was due to be filed with the trial court thirty days after he was sentenced — July 18, 2001. Appellant mailed his notice of appeal to the "Clerk of Court" at our physical address. We received the notice on July 18, 2001, and forwarded it to the trial court. Even if we were to conclude the notice was sent to the proper clerk and was properly addressed on or before the last day for filing, appellant's notice was received four days beyond the ten additional days given for mailed documents in the Texas Rules of Appellate Procedure. Id. No rule of appellate procedure authorizes this court to accept appellant's late notice of appeal. Rule 26.3 permits the appellate court to extend the time to file a notice of appeal if within fifteen days after the deadline for filing the notice of appeal, the appellant files the notice of appeal in the trial court and files a motion to extend time. TEX. R. APP. P. 26.3. Although the Texas Supreme Court has determined that a motion to extend time is implied when a party, acting in good faith, files an instrument to perfect an appeal within the fifteen-day period, the Court of Criminal Appeals has steadfastly held that both the notice of appeal and a motion to extend must be filed within the fifteen-day period. Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.-Houston [1st Dist] 1999, no pet.) (discussing the divergent paths taken by the two highest appellate courts in Texas regarding the perfection of appellate jurisdiction). Furthermore, rule 2, authorizing an appellate court to suspend the operation of an appellate rule for good cause, has been held not to authorize the suspension of the time limit for perfecting an appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim. App. 1998); Olivo v. State, 918 S.W.2d 518, 523 (Tex.Crim. App. 1996); see also Oldham v. State, 977 S.W.2d 354, 359 (Tex.Crim.App. 1998) (suspension or enlargement of appellate time limits oversteps contemplated uses of rule 2). "`The Rules of Appellate Procedure do not establish courts of appeals' jurisdiction; they provide procedures which must be followed by litigants to invoke the jurisdiction of the courts of appeals so that a particular appeal may be heard.'" Slaton, 981 S.W.2d at 210 (quoting Olivo, 918 S.W.2d at 523). Thus, a notice of appeal, which complies with the rules is essential to vest an appellate court with jurisdiction. Id. "If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal." Id. We are bound to follow the precedent of the Court of Criminal Appeals in Olivo v. State and Slaton v. State. Accordingly, because his notice of appeal was not timely filed with the trial court, we dismiss appellant's appeal for lack of jurisdiction.
In three points of error, appellant claims (1) the evidence was factually insufficient to support a conviction for aggravated robbery with a firearm because appellant testified at the preliminary sentencing hearing that he used a BB gun to commit the robberies; (2) the plea of guilty was not made voluntarily because appellant was unable to read the admonishments, statements, and waivers, and was never informed orally that he was pleading guilty to the use of a firearm; and (3) appellant received ineffective assistance of counsel when his trial attorney failed to file a motion to withdraw the pleas of guilty after appellant testified that he used a BB gun rather than a firearm because appellant would have received a lesser sentence for robbery.
The rules provide that a mailed document received within ten days after the filing deadline is considered timely filed if, among other things, it was sent to the proper clerk and was properly addressed. TEX. R. APP. P. 9.2(b).