Calvin R. Kuykendall v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-410-CR
CALVIN R. KUYKENDALL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Calvin R. Kuykendall attempts to appeal his convictions for
possession with intent to deliver a controlled substance of four grams or more
and for illegal investment. The jury found Appellant guilty, and the trial court
sentenced him to twenty-five years’ confinement. We dismiss the appeal for
want of jurisdiction.
1
… See T EX. R. A PP. P. 47.4.
Pursuant to rule 26.2 of the rules of appellate procedure, a notice of
appeal must be filed within thirty days after the day sentence is imposed, or
within ninety days after the day sentence is imposed if the defendant files a
timely motion for new trial. T EX. R. A PP. P. 26.2(a)(1), (2). Appellant did not
file a motion for new trial; thus, his notice of appeal was due October 17,
2007, but was not filed until October 24, 2007. Appellant did not file a motion
to extend the time for filing the notice of appeal. See T EX. R. A PP. P. 26.3.
On January 14, 2008, we notified Appellant of the apparent untimeliness
of his appeal and informed him that we would dismiss the appeal unless he filed
a response by January 24, 2008, showing grounds for continuing the appeal.
See T EX. R. A PP. P. 44.3. We did not receive a response.
A first supplemental clerk’s record was subsequently filed on February 6,
2008. It contained a February 5, 2008 order appointing counsel for Appellant
on appeal. We therefore notified Appellant’s appointed counsel on February 6,
2008, of our concern that we lacked jurisdiction over the appeal. Appellant’s
counsel responded and explained that she had not been appointed to represent
Appellant until February 5, 2008, because of an alleged trial court clerk error.
Although Appellant did not file a motion for extension of time along with his
late notice of appeal, his counsel requested that we allow the appeal to proceed
pursuant to the procedure outlined in rule 26.3 and in the interest of justice;
2
counsel essentially asks that a motion for extension of time be implied as in civil
appeals under Verburgt v. Donner, 959 S.W.2d 615, 617 (Tex. 1997).
A notice of appeal that complies with the requirements of rule 26 is
essential to vest this court with jurisdiction. T EX. R. A PP. P. 26; see Slaton v.
State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). The court of criminal
appeals has expressly held that, without a timely filed notice of appeal or
motion for extension of time, we cannot exercise jurisdiction over an appeal.
See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also
Slaton, 981 S.W.2d at 210. The court has declined to adopt the liberal “civil
appellate approach” that permits an appellant to invoke the jurisdiction of an
appellate court by merely filing a notice of appeal within fifteen days of its due
date, without the necessity of a timely filed motion for extension. Olivo, 918
S.W.2d at 522–25; cf. Verburgt, 959 S.W.2d at 615.
3
Appellant never filed a motion to extend the time to file the notice of
appeal. Because Appellant’s notice of appeal was untimely, we have no
jurisdiction over this appeal. See Olivo, 918 S.W.2d at 522–23; see also
Slaton, 981 S.W.2d at 209–10.2 Accordingly, we dismiss this appeal for want
of jurisdiction.
PER CURIAM
PANEL D: HOLMAN, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 20, 2008
2
… Unlike the court of criminal appeals, we cannot grant an out-of-time
appeal. See T EX. C ODE C RIM. P ROC. A NN. art. 11.07 (Vernon Supp. 2007).
4