Opinion
No. 10-03-089-CR.
Opinion delivered and filed July 9, 2003. DO NOT PUBLISH.
From the 12th District Court, Leon County, Texas, Trial Court # 7716-B.
Before Chief Justice Davis, Justice Vance, and Justice Gray (Justice Gray concurring without a separate opinion)
MEMORANDUM OPINION
The trial court revoked Godfrey Vann Miller's community supervision for felony DWI and imposed a sentence of four years' imprisonment on September 23, 2002. The clerk's record contains a notice of appeal file-stamped on November 25. Because Miller did not file a motion for new trial, his notice of appeal was due on October 23, 2002. See Tex.R.App.P. 26.2(a)(1). Due to the November 25 file stamp, the Clerk of this Court sent the following notice to Miller's counsel by letter dated June 5, 2003:
Pursuant to Rule 44.3 of the Texas Rules of Appellate Procedure, you are notified that this cause is subject to dismissal for want of jurisdiction because it appears the notice of appeal is untimely. Therefore, the Court may dismiss this appeal unless, within ten days of the date of this letter, a response is filed showing grounds for continuing the appeal.Counsel responded by letter dated June 12. Counsel states in pertinent part:
I have no explanation as to why the District Clerk's file shows a filing date of November 25, 2002 as opposed to September 23, 2002. However, I assure the Court that such notice was indeed filed on September 23, 2002. This notice was filed at the time of sentencing, and the posting of an appeal bond. In fact, I am confident Judge Ernst entered such notice on the docket sheet.Counsel also references the certificate of service in the notice of appeal which recites that counsel served the State's attorney with a copy of the notice on September 23. Counsel attached an affidavit to support his letter. The affidavit recites in pertinent part, "I now state under oath that written notice of appeal was filed in the 12th Judicial District Court on September 23, 2002." The docket sheet contains a notation initialed by the trial judge and dated September 23, which recites in pertinent part, "[Defendant] gives notice of appeal. Bond set at $8,000.00." The certificate of service in the notice of appeal reflects that counsel served the State's attorney on September 23. The certificate is silent regarding the date of filing (or "service") with the trial court clerk. Rule of Appellate Procedure 25.2(c)(1) provides that a defendant perfects his appeal by notice of appeal which "must be given in writing and filed with the trial court clerk." Tex.R.App.P. 25.2(c)(1) (emphasis added). Miller's counsel seems to argue that he satisfied this requirement by giving a written notice of appeal to the judge. However, Rule 25.2(c)(1) does not permit a defendant to perfect appeal in this manner. Cf. Tex.R.Civ.P. 74 ("judge may permit . . . papers to be filed with him"). Miller's counsel does not state that he filed a notice of appeal with the trial court clerk on September 23, 2002. Giving notice to the trial judge is not sufficient to perfect an appeal. The notice of appeal filed with the trial court clerk is nearly a month late. Because Miller did not timely file a notice of appeal with the trial court clerk, we dismiss the appeal for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Fowler v. State, 16 S.W.3d 426, 428 (Tex.App.-Waco 2000, pet. ref'd). Appeal dismissed for want of jurisdiction