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Petry v. State

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
Aug 30, 2012
NO. 12-12-00268-CR (Tex. App. Aug. 30, 2012)

Opinion

NO. 12-12-00268-CR

08-30-2012

DOMONIC VERRON PETRY, APPELLANT v. THE STATE OF TEXAS, APPELLEE


APPEAL FROM THE


COUNTY COURT AT LAW #2


SMITH COUNTY, TEXAS


MEMORANDUM OPINION

PER CURIAM

Appellant attempts to appeal the revocation of his community supervision in a misdemeanor theft case. We dismiss for want of jurisdiction.

Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after sentence is imposed in open court. TEX. R. APP. P. 26.2(a)(1). When, as here, a motion for new trial is filed, the notice of appeal must be filed within ninety days after sentence is imposed in open court. TEX. R. APP. P. 26.2(a)(2). Sentence was imposed in open court on April 4, 2012, and Appellant timely filed a motion for new trial. Therefore, Appellant's notice of appeal was due to have been filed on or before July 3, 2012. However, Appellant did not file his notice of appeal until July 12, 2012 and did not file a motion for extension of time to file the notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3. See TEX. R. APP. P. 26.3 (appellate court may extend time for filing notice of appeal if, within fifteen days after deadline for filing notice of appeal, appellant files notice of appeal in trial court and motion complying with Texas Rule of Appellate Procedure 10.5(b) in appellate court).

On August 10, 2012, this court notified Appellant that his notice of appeal was untimely and that there was no timely motion for an extension of time to file the notice of appeal as permitted by Rule 26.3. Appellant was further informed that the appeal would be dismissed unless, on or before August 20, 2012, the information filed in this appeal was amended to show the jurisdiction of this court. On August 20, 2012, Appellant filed a motion to extend the time for filing his notice of appeal to July 12, 2012. However, his motion was not filed on or before July 18, 2012 (fifteen days after the deadline for filing the notice of appeal) as required by Rule 26.3. Therefore, the motion is untimely and must be overruled. See TEX. R. APP. 26.3.

Because this court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Accordingly, Appellant's motion for extension of time to file the notice of appeal is overruled, and the appeal is dismissed for want of jurisdiction.Panel consisted of Worthen, C.J., Griffith, J. and Hoyle, J.

Appellant may have recourse by filing a postconviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2012).

(DO NOT PUBLISH)

NO. 12-12-00268-CR


DOMONIC VERRON PETRY, Appellant

V.

THE STATE OF TEXAS, Appellee


Appeal from the County Court at Law #2

of Smith County, Texas. (Tr.Ct.No. 002-83152-11

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this court that this court is without jurisdiction of the appeal, and that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


Summaries of

Petry v. State

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
Aug 30, 2012
NO. 12-12-00268-CR (Tex. App. Aug. 30, 2012)
Case details for

Petry v. State

Case Details

Full title:DOMONIC VERRON PETRY, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Court:COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

Date published: Aug 30, 2012

Citations

NO. 12-12-00268-CR (Tex. App. Aug. 30, 2012)