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Burnett v. State

Court of Appeals For The First District of Texas
May 12, 2016
NO. 01-15-00868-CR (Tex. App. May. 12, 2016)

Opinion

NO. 01-15-00868-CR

05-12-2016

MICAH DEMARCUS BURNETT, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 180th District Court Harris County, Texas
Trial Court Case No. 1250296

MEMORANDUM OPINION

Appellant, Micah Demarcus Burnett, attempts to appeal the revocation of his deferred adjudication for the offense of aggravated robbery with a deadly weapon. The trial court adjudicated his guilt and sentenced appellant to 18 years confinement on July 30, 2015. Appellant filed a pro se notice of appeal on September 3, 2015. We dismiss the appeal.

Because the trial court signed the judgment adjudicating appellant's guilt on July 30, 2015, appellant's notice of appeal was due August 29, 2015. See TEX. R. APP. P. 26.2 (notice of appeal must be filed 30 days after sentence is imposed). Appellant's notice of appeal, which contains no certificate of service and is not dated, was postmarked on September 1, 2015 and filed on September 3, 2015. The record contains no indication of when the notice was delivered to prison authorities for mailing. See Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010) ("We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk."). Also, appellant failed to respond to our notice of November 24, 2015, informing him that his notice of appeal may not have been timely filed and his appeal may be dismissed unless he filed a response showing grounds for continuing this appeal. Appellant did not file a response.

The time for filing the notice of appeal may be extended if, within fifteen days of the deadline for filing the notice of appeal, the appellant files the notice of appeal and a motion complying with Rule 10.5(b). See TEX. R. APP. P. 26.3; 10.5(b). Although appellant's notice of appeal was filed within fifteen days of the deadline, no motion for extension of time was filed. "When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction." Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Although the Court of Criminal Appeals has interpreted Rule 26.3 similarly to the Texas Supreme Court in regard to amending a defective notice of appeal, see Few v. State, 230 S.W.3d 184, 189-90 (Tex. Crim. App. 2007) and Bayless v. State, 91 S.W.3d 801 (Tex. Crim. App. 2002), the court has not held that an extension is implied if a notice of appeal is filed within fifteen days after the deadline. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that in civil cases, "a motion for extension of time is necessarily implied" when appellant, acting in good faith, files notice of appeal beyond time permitted by Rule 26.1, but within fifteen-day period in which appellant would be entitled to move to extend filing deadline under Rule 26.3).

This Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3. See Olivo, 918 S.W.2d at 522. If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). We conclude that appellant's notice of appeal was untimely. See TEX. R. APP. P. 9.2(b), 26.2(a); Durbin v. State, No. 05-12-00355-CR, 2012 WL 1501415, at *1 (Tex. App.—Dallas April 30, 2012, no pet.) (mem. op., not designated for publication) (dismissing appeal when notice of appeal was postmarked and file-stamped after deadline, appellant failed to show when notice was delivered to prison authorities, and appellant failed to respond to State's motion to dismiss); Nelson v. State, No. 02-11-00509-CR, 2012 WL 503145, at *1 (Tex. App.—Fort Worth Feb. 16, 2012, no pet.) (mem. op., not designated for publication) (dismissing appeal when notice of appeal was filed one day late and appellant failed to respond to court's request to show grounds for continuing appeal, despite "unidentified stamp of date prior to deadline for filing); Torres v. State, No. 05-11-00879-CR, 2012 WL 387859, at *1 (Tex. App.—Dallas Feb. 8, 2012, no pet.) (mem. op., not designated for publication) (dismissing appeal for lack of jurisdiction when notice was file-stamped after deadline, record failed to show that notice was mailed by deadline, and appellant did not respond to court's request for brief addressing court's jurisdiction).

Because appellant's notice of appeal was untimely, we have no basis for jurisdiction over this appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522. Accordingly, we dismiss the appeal for want of jurisdiction. We dismiss all pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).


Summaries of

Burnett v. State

Court of Appeals For The First District of Texas
May 12, 2016
NO. 01-15-00868-CR (Tex. App. May. 12, 2016)
Case details for

Burnett v. State

Case Details

Full title:MICAH DEMARCUS BURNETT, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals For The First District of Texas

Date published: May 12, 2016

Citations

NO. 01-15-00868-CR (Tex. App. May. 12, 2016)