Whitehead v. State

Full title: CHARLES DAVID WHITEHEAD, Appellant, v. STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: Aug 31, 2005

No. 11-05-00240-CR (Tex. App. Aug. 31, 2005)

Opinion

No. 11-05-00240-CR

August 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

Appeal from Eastland County.

Panel consists of: WRIGHT, J., and McCALL, J.¹

1 W.G. Arnot, III, Chief Justice, retired effective July 31, 2005. The chief justice position is vacant.

OPINION

PER CURIAM.

The jury convicted Charles David Whitehead of retaliation, found the enhancement allegation to be true, and assessed his punishment at confinement for 15 years and a $10,000 fine. We dismiss. The trial court imposed the sentence in open court on June 21, 2005. A motion for new trial was not filed. Pursuant to TEX.R.APP.P. 26.2, the notice of appeal was due to be filed with the clerk of the trial court on or before July 21, 2005, 30 days after the date sentence was imposed in open court. The notice of appeal was filed on July 25, 2005, 34 days after the date sentence was imposed. TEX.R.APP.P. 26.3 provides that the time for perfecting an appeal may be extended if appellant files within 15 days of the original due date for the notice of appeal both a notice of appeal with the clerk of the trial court and a motion for extension of time with the appellate court. The Court of Criminal Appeals has held that both the notice of appeal and the motion must be filed within the specified 15-day time period. Olivo v. State, 918 S.W.2d 519 (Tex.Cr.App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex.Cr.App. 1993). Absent a timely notice of appeal or compliance with Rule 26.3, this court lacks jurisdiction to entertain an appeal. Slaton v. State, 981 S.W.2d 208 (Tex.Cr.App. 1998); Olivo v. State, supra; Rodarte v. State, supra; Shute v. State, 744 S.W.2d 96 (Tex.Cr.App. 1988). Pursuant to Rule 26.3, the motion for extension of time in which to perfect an appeal was due to be filed in this court on or before August 5, 2005. On August 8, 2005, appellant filed a pro se letter in this court stating:

Explanation for the failure to timely file the notice of appeal is inefficient counsel; trial lawyer . . . refused to appeal . . . I want an appeal . . . I am now trying to obtain court-appointed attorney.

On August 15, 2005, counsel filed in this court a motion for extension of time in which to perfect an appeal. Neither appellant's letter nor counsel's motion is timely under Rule 26.3. Counsel's motion is overruled. Appellant may be able to secure an out-of-time appeal by filing a post-conviction writ of habeas corpus pursuant to TEX. CODE CRIM. PRO. ANN. art. 11.07 (Vernon 2005). The appeal is dismissed for want of jurisdiction.