Opinion
NO. 01-06-01046-CR
05-03-2012
STEPHANIE ANNE SHILL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Cause No. 06-CCR-124814
MEMORANDUM OPINION
This is an appeal from the county court at law's action in dismissing appellant's attempted appeal from the municipal court for a trial de novo and issuing a writ of procedendo to the municipal court. Because we lack jurisdiction, we dismiss the appeal.
This writ is defined in Black's Law Dictionary 1367 (4th Edition 1968) as "a writ by which a cause which has been removed from an inferior to a superior court by certiorari or otherwise is sent down to the same court, to be proceeded in there, where it appears to the superior court that it was removed on insufficient grounds."
On June 14, 2006, appellant, Stephanie Shill, pleaded no contest to a driving-without-insurance citation in the Municipal Court of Sugar Land, Fort Bend County, Texas. The trial court found appellant guilty and assessed punishment at a $250 fine. Appellant posted a $250 appeal bond, which the municipal court declined to approve because it did not comply with TEX. CODE CRIM. PROC. art. 45.0425 (Vernon 2006). Another appeal bond in the amount of $500 was later filed. Appellant also filed a notice of appeal seeking trial de novo, which was docketed in the County Court at Law Number Two.
The State moved for a writ of procedendo, arguing that the appeal bond "failed to meet the statutory requirements for perfecting an appeal, therefore, the appeal is defective." On September 18, 2006, the county court at law granted the State's motion, dismissed the attempted appeal for trial de
novo, and issued a writ of procedendo to the municipal court. It is this order that gives rise to the present appeal.
However, the county court at law signed the order on September 18, 2006. Appellant did not file a motion for new trial, and therefore the deadline for filing a notice of appeal was October 18, 2006, 30 days the trial court's order. See TEX. R. AP P. P. 26.2(a)(1). Appellant also filed a motion for extension of time to file a notice of appeal, which would have extended her period for filing a notice of appeal for an additional 15 days, or until November 2, 2006. See TEX. R. APP. P. 26.3.
Appellant filed her notice of appeal on November 7, 2006, five days after the deadline. Even if we were to assume that the notice of appeal was deposited in the mail on November 3, 2006—the date upon which it was signed and the date appearing on its certificate of service—it would nonetheless be one day late. A notice of appeal mailed after the filing deadline does not comply with Rule 9.2 of the Texas Rules of Appellate Procedure, the "mailbox rule." See TEX. R. APP. P. 9.2(b).
An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. Slaton v. State, 981 S.W.2d 208, 209-10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
To the extent that appellant claims she did not have notice of the trial court's judgment, we note that Rule 4.2 of the Texas Rules of Appellate Procedure, which provides for additional time when a party has no notice of an order or judgment, applies only to civil cases. See TEX. R. APP. P. 4.2.
We grant the State's motion and dismiss the appeal for lack of jurisdiction.
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. TEX. R. APP. P. 47.2(b).