Brian Daniels v. the State of Texas ( 2021 )


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  •                                    NO. 12-21-00136-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    BRIAN DANIELS,                                     §      APPEAL FROM THE 294TH
    APPELLANT
    V.                                                 §      JUDICIAL DISTRICT COURT
    THE STATE OF TEXAS,
    APPELLEE                                           §      VAN ZANDT COUNTY, TEXAS
    MEMORANDUM OPINION
    PER CURIAM
    Brian Daniels, acting pro se, filed a notice of appeal from a judgment in which sentence
    was imposed on April 19, 2021. In a criminal case, the appellant perfects an appeal by timely
    filing a sufficient notice of appeal. TEX. R. APP. P. 25.2(b). The notice of appeal must be filed
    (1) within thirty days after the day sentence is imposed or suspended in open court or after the
    day the trial court enters an appealable order, or (2) within ninety days after the day sentence is
    imposed or suspended in open court if the defendant timely files a motion for new trial. TEX. R.
    APP. P. 26.2(a). The appellate court may extend the time for filing a notice of appeal if, within
    fifteen days after the deadline for filing the notice, the party files in the trial court the notice of
    appeal and files in the appellate court a motion complying with Rule 10.5(b). TEX. R. APP. P.
    26.3.
    Because sentence was imposed on April 19 and Appellant filed a timely motion for new
    trial, Appellant’s notice of appeal was due on or before July 19. See TEX. R. APP. P. 26.2(a)(1).
    A motion for extension of time was due on or before August 3. Appellant filed his notice of
    appeal on August 17.
    On August 17, the Clerk of this Court notified Appellant that the information received
    failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the
    time allowed by the rules of appellate procedure and no timely motion for an extension of time to
    file the notice of appeal. See TEX. R. APP. P. 26.2(a), 26.3. We informed Appellant that the
    appeal would be dismissed unless the information was amended on or before August 27 to show
    this Court’s jurisdiction. Appellant did not respond to this Court’s notice.
    “[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted
    only when they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 
    330 S.W.3d 904
    , 915 (Tex. Crim. App. 2011). This Court is not authorized to extend the time for perfecting
    an appeal except as provided by the Texas Rules of Appellate Procedure. 1 See TEX. R. APP. P.
    26.2, 26.3; see also Slaton v. State, 
    981 S.W.2d 208
    , 210 (Tex. Crim. App. 1998); Olivo v. State,
    
    918 S.W.2d 519
    , 522 (Tex. Crim. App. 1996). Because Appellant’s notice of appeal was not
    timely filed and he did not file a motion for extension with this Court within the time prescribed
    by Rule 26.3, we dismiss Appellant’s appeal for want of jurisdiction. See Olivo, 
    918 S.W.2d at 522
    ; see also TEX. R. APP. P. 43.2(f).
    Opinion delivered September 15, 2021.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    (DO NOT PUBLISH)
    1
    Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth
    Court of Appeals, 
    802 S.W.2d 241
    , 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR,
    
    2017 WL 631842
    , at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for
    publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without
    permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).
    2
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    SEPTEMBER 15, 2021
    NO. 12-21-00136-CR
    BRIAN DANIELS,
    Appellant
    V.
    THE STATE OF TEXAS,
    Appellee
    Appeal from the 294th District Court
    of Van Zandt County, Texas (Tr.Ct.No. CR16-00472)
    THIS CAUSE came on to be heard on the appellate record, and the same
    being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
    that the appeal should be dismissed.
    It is therefore ORDERED, ADJUDGED and DECREED by this Court that
    this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
    be certified to the court below for observance.
    By per curiam opinion.
    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
    

Document Info

Docket Number: 12-21-00136-CR

Filed Date: 9/15/2021

Precedential Status: Precedential

Modified Date: 9/20/2021