Deon Rush v. State ( 2009 )

Dismissed and Memorandum Opinion filed July 9, 2009

Dismissed and Memorandum Opinion filed July 9, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-09-00434-CR

NO. 14-09-00453-CR

NO. 14-09-00460-CR

NO. 14-09-00462-CR

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DEON RUSH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 506th District Court

Grimes County, Texas

Trial Court Cause Nos. 16022, 16024, 16026, 16020

M E M O R A N D U M   O P I N I O N

Appellant entered a guilty plea to two counts of burglary of a habitation.  (Appeal No. 14-09-00434-CR, Cause No. 16022, and Appeal No. 14-09-00453, Cause No. 16024).   In each case, in accordance with the terms of a plea bargain agreement with the State, the trial court sentenced appellant on February 18, 2009, to confinement for eighteen years in the Institutional Division of the Texas Department of Criminal Justice.  No motion for new trial was filed in either case.  The record reflects that in both cases appellant=s notice of appeal was not timely filed.

A defendant=s notice of appeal must be filed within thirty days after sentence is imposed when the defendant has not filed a motion for new trial.  See Tex. R. App. P. 26.2(a)(1).  The time for filing the notice of appeal may be extended if, within fifteen days of the deadline for filing the notice of appeal, 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).

In each case, the notice of appeal was due March 20, 2009. See Tex. R. App. P. 26.2(a)(1).  In each case, appellant=s notice of appeal was not filed until April 6, 2009.  Appellant=s notices of appeal were filed within fifteen days of the deadline, but no motion for extension of time was filed in either case.  See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).  Although the Court of Criminal Appeals has interpreted Tex. R. App. P. 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); 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).  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).  Accordingly, the appeals in Appeal No. 14-09-00434-CR and Appeal No. 14-09-00453-CR are ordered dismissed.

In connection with these proceedings, the trial court signed two orders granting appellant=s request to consider unadjudicated offenses pursuant to section 12.45 of the Texas Penal Code.  (Appeal No. 14-09-00460-CR, Cause No. 16026, and Appeal No. 14-09-00462, Cause No. 16020). The trial court=s order does not constitute a conviction in either case.

Generally, an appellate court only has jurisdiction to consider an appeal by a criminal defendant where there has been a final judgment of conviction.  Workman v. State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961);  McKown v. State, 915 S.W.2d 160, 161  (Tex. App.CFort Worth 1996, no pet.).  The exceptions include:  (1) certain appeals while on deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624, 625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to reduce bond, Tex. R. App. P.  31.1; McKown, 915 S.W.2d at 161;  and (3) certain appeals from the denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.CDallas 1998, no pet.);  McKown, 915 S.W.2d at 161. 

An order issued under section 12.45 of the Texas Penal Code is not a separately appealable order.  See Lackie v. State, 70 S.W.3d 344, 345 (Tex. App.B Waco 2002, no pet.). Because these appeals do not fall within the exceptions to the general rule that appeal may be taken only from a final judgment of conviction, we have no jurisdiction. Accordingly, the appeals in 14-09-00460-CR and 14-09-00462-CR are ordered dismissed.

PER CURIAM

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).