Opinion
NO. 01-11-00052-CR
08-02-2012
HENRY EARL TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1066968
MEMORANDUM OPINION
After Henry Earl Taylor was charged with evading arrest with a motor vehicle, he waived indictment, pleaded no contest, and received two years' deferred adjudication community supervision. In March 2008, the State filed a motion to adjudicate his guilt. Taylor was arrested on September 28, 2010, over two years after his community supervision expired. After hearing the State's motion, the trial court found true four of the allegations that Taylor violated his community supervision and imposed a sentence of two years' confinement in the state jail. In his sole issue on appeal, Taylor argues that his counsel was ineffective in failing to raise an available defense that may have resulted in the trial court's losing jurisdiction to hear the motion to adjudicate. We conclude we lack jurisdiction to hear Taylor's appeal.
Generally, a notice of appeal must be filed within thirty days after the day the sentence is imposed or suspended in open court. TEX. R. APP. P. 26.2(a)(1). Taylor's guilt was adjudicated on November 18, 2010. Taylor did not move for a new trial or otherwise extend his appellate deadlines. Therefore, Taylor's notice of appeal was due on December 18, 2010, thirty days after November 18, 2010. See TEX. R. APP. P. 21.4(a). Because December 18 was a Saturday, his deadline was extended until the following Monday, December 20, 2010. TEX. R. APP. P. 4.1(a). His undated, hand-written notice of appeal was stamped received by this court one day after the deadline, on December 21, 2010. It was stamped filed by the district court on December 27, 2010. No certificate of service or envelope accompanied the notice of appeal, and we are thus unable to determine whether the notice of appeal was filed by mail.
Because the record did not demonstrate that the notice of appeal was timely filed, we requested that Taylor show grounds for continuing the appeal. In response, Taylor's appellate counsel did not contend that the notice of appeal was timely under the mailbox rule. Rather, he conceded that the notice of appeal was untimely but pointed out that he "relied on this Court's finding in [an] order, dated October 11, 2011, that appellant timely filed his pro se notice of appeal."
Texas Rule of Appellate Procedure 9.2(b) provides that a mailed document is considered timely if, among other things, it was received within ten days after the deadline.
A notice of appeal that complies with Rule 26 is essential to vest this court with jurisdiction. The Court of Criminal Appeals has expressly held that without a timely filed notice of appeal or a timely filed motion for extension of time, we cannot exercise jurisdiction over an appeal. 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); see also Douglas v. State, 987 S.W.2d 605, 605-06 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The incorrect statement in the October 11 abatement order cannot confer jurisdiction on this court where there is no notice of appeal that complies with Rule 26. Because Taylor's notice of appeal was untimely, we lack jurisdiction to consider the merits of his appeal.
We dismiss this appeal for lack of jurisdiction.
All pending motions are denied as moot.
PER CURIAM
Panel consists of Justices Higley, Sharp, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).