Opinion
No. 06-05-00276-CR
Submitted: January 17, 2006.
Decided: January 18, 2006. DO NOT PUBLISH.
On Appeal from the 102nd Judicial District Court, Bowie County, Texas, Trial Court No. 05F0042-102.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Nathaniel Threadgill appeals from his conviction by a jury for unauthorized use of a motor vehicle. Sentence was imposed November 15, 2005. No motion for new trial or other motion was filed that would serve to extend the time for filing the notice of appeal. The notice of appeal was filed thirty-one days later, December 16, 2005. Although the motion indicates that hand delivery was made on opposing counsel before that date, it does not indicate that the notice was mailed before that date, and it contains no other internal dating. We contacted the district clerk, who informed us that there is no indication in their records that they received the document through the mail. A defendant must file his or her notice of appeal "(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." Tex.R.App.P. 26.2(a). The notice was untimely. A late notice of appeal is considered timely and thus invokes the appellate court's jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519, 520 (Tex.Crim.App. 1996). Further, when a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id., citing Rodarte v. State, 860 S.W.2d 108 (Tex.Crim.App. 1993). Because the notice of appeal was untimely filed, and because no timely motion to extend time was filed, we have no jurisdiction over this appeal. We dismiss the appeal for want of jurisdiction.
Interpreting the same rule, the Texas Supreme Court has held that, if an appellant files a written notice of appeal within fifteen days after the deadline for perfecting appeal, "a motion for extension of time is necessarily implied" even if it is not filed. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Verburgt, of course, applies only in civil cases, and the Texas Court of Criminal Appeals has rejected the argument and held that the failure to file a timely motion for extension of time to file a notice of appeal deprived the court of appeals of jurisdiction. See Olivo, 918 S.W.2d at 526.