Opinion
No. 05-06-00781-CR
Opinion Filed April 9, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 4 Collin County, Texas, Trial Court Cause No. 4-84196-03.
Before Justices MORRIS, WRIGHT, and FITZGERALD JJ.
MEMORANDUM OPINION
Joel Marquez was convicted of assault on October 27, 2005 and punishment was assessed on that date by pronouncement in open court at thirty days' confinement and a $300 fine, with both the fine and confinement probated for one year. The trial court entered a judgment nunc pro tunc on November 8, 2005. Appellant filed a motion for new trial on November 28, 2005, and filed his notice of appeal on February 22, 2006. We directed the parties to file letter briefs addressing jurisdiction. Appellant filed a letter brief and the State responded. We dismiss the appeal for want of jurisdiction. Appellant argues we have jurisdiction because the judgment nunc pro tunc entered by the trial court on November 8, 2005 extended the time to file his appeal, including ninety days from November 8, 2005, plus a fifteen day extension to February 22, 2006, the date he filed the notice of appeal. The State responds appellant's notice of appeal is untimely, appellant filed no extension motion, the entry of the judgment nunc pro tunc does not extend the ninety day period, and even if the judgment nunc pro tunc extends the ninety day period, that date plus the fifteen day extension is February 21, 2006, not February 22, 2006. Appellant's notice of appeal is due thirty days after the date sentence is imposed or suspended in open court, unless appellant files a motion for new trial, in which case he has ninety days from the date sentence is imposed or suspended in open court. See Tex. R. App. P. 26.2; Rodarte v. State, 860 S.W.2d 108, 109-10 (Tex.Crim.App. 1993). Here, punishment was assessed on October 27, 2005 by pronouncement in open court; therefore, October 27, 2005 is the beginning date for determining the due date of the motion for new trial and the notice of appeal. The November 8, 2005 judgment nunc pro tunc did not extend the Rule 26.2 beginning date. See Rodarte, 860 S.W.2d at 109 n. 1. Appellant timely filed a motion for new trial, extending the due date of the notice of appeal to ninety days from October 27, 2005 to January 25, 2006. Appellant did not file a motion for extension of time to file the notice of appeal within fifteen days of January 25, 2006. See Tex. R. App. P. 26.3. Therefore, the notice of appeal was due January 25, 2006, but was untimely filed on February 22, 2006, one hundred eighteen days after October 27, 2005. Appellant's February 22, 2006 notice of appeal is untimely, leaving us without jurisdiction over the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam).
We dismiss the appeal for want of jurisdiction.