Opinion
No. 05-16-00132-CR
03-17-2016
JOAN NOIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 5 Dallas County, Texas
Trial Court Cause No. F13-58240-L
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Stoddart
Joan Nois was convicted by a jury of aggravated robbery, and punishment was assessed by the jury at forty years' imprisonment and a $10,000 fine. Sentence was imposed in open court on December 17, 2015. No motion for new trial was filed; therefore appellant's notice of appeal was due by Tuesday, January 19, 2016. See TEX. R. APP. P. 4.1(a), 26.2(a)(1). Appellant's pro se notice of appeal is dated January 25, 2016 and is file-stamped February 5, 2016. Because appellant's notice of appeal appeared to be untimely, we directed appellant and the State to file letter briefs addressing our jurisdiction over the appeal, but neither responded. We conclude we lack jurisdiction over the appeal.
"Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id. at 523. "The standard to determine whether an appellate court has jurisdiction to hear and determine a case 'is not whether the appeal is precluded by law, but whether the appeal is authorized by law.'" Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by criminal defendants only after conviction or the entry of an appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).
To invoke this Court's jurisdiction, an appellant must timely file a notice of appeal. See TEX. R. APP. P. 26.2(a); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). Absent a motion for new trial, a notice of appeal is due within thirty days of the date sentence is imposed in open court. See TEX. R. APP. P. 26.2(a)(1). To obtain the benefit of the extension period provided by rule 26.3, an appellant must, within fifteen days of the date the notice of appeal is due, both file his notice of appeal in the trial court and file an extension motion in this Court. See TEX. R. APP. P. 26.3.
Appellant's notice of appeal was due by Tuesday, January 19, 2016. See TEX. R. APP. P. 4.1(a), 26.2(a)(1). His pro se notice of appeal is dated January 25, 2016. To obtain the benefit of rule 26.3, appellant had to file both his notice of appeal in the trial court and an extension motion in this Court by February 3, 2016. See TEX. R. APP. P. 26.3; Slaton, 981 S.W.2d at 210. Although appellant's pro se notice of appeal was filed within the fifteen-day period provided by rule 26.3, see Campbell v. State, 320 S.W.3d 338 (Tex. Crim. App. 2010) (applying prisoner mailbox rule), he did not file an extension motion in this Court by February 3, 2016. Appellant's notice of appeal, on its face, reflects that it was prepared on January 25, 2016. Therefore, appellant did not invoke this Court's jurisdiction over the appeal. See Slaton, 981 S.W.2d 210.
We dismiss the appeal for want of jurisdiction.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not publish
TEX. R. APP. P. 47
160132F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 5, Dallas County, Texas
Trial Court Cause No. F-1358240-L.
Opinion delivered by Justice Stoddart, Justices Fillmore and Schenck participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered this 17th day of March, 2016.