John F.K. McDonald v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

John F.K. McDonald

Appellant

Vs.                   No.  11-04-00268-CR -- Appeal from Shackelford County

State of Texas

Appellee

The trial court found appellant, John F.K. McDonald, guilty of theft and assessed his punishment at confinement in the State Jail Division of the Texas Department of Criminal Justice for a term of 18 months.  The sentence was imposed on August 19, 2004, as per the trial court=s judgment.  No motion for new trial was filed.  Pursuant to TEX.R.APP.P. 26.2(a)(1), appellant=s notice of appeal was due to be filed on or before September 20, 2004, 30 days after the date the sentence was imposed.^[1]

A timely notice of appeal is necessary to invoke this court=s jurisdiction.  Olivo v. State, 918 S.W.2d 519, 522 (Tex.Cr.App.1996). Appellant filed a notice of appeal with the trial court clerk on September 23, 2004.  Upon receiving the clerk=s record, this court determined that the notice of appeal was untimely.  This court advised appellant in writing that the appeal would be dismissed if he did not establish that this court had jurisdiction.  On December 6, 2004, appellant filed a written response wherein he contends that he timely filed his notice of appeal because the trial court=s judgment of conviction was not signed until August 27, 2004.  Appellant asserts that he had 30 days after August 27, 2004, to file his notice of appeal because the trial court=s judgment of conviction constituted an appealable order.  See Rule 26.2(a)(1).

Appellant=s interpretation of Rule 26.2(a)(1) is incorrect. When a defendant appeals from a conviction in a criminal case, the time to file the notice of appeal runs from the date sentence is imposed or suspended in open court, not from the date the written judgment of conviction is signed and entered by the trial court. Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Cr.App.1993). Accordingly, the time period for filing the notice of appeal began on the date that sentence was imposed (August 19, 2004) irrespective of the fact that the written judgment of conviction was signed on a later date.

Appellant has not filed a motion seeking to extend the time for filing the notice of appeal within the time frame required by TEX.R.APP.P. 26.3.  Absent a timely notice of appeal or strict compliance with Rule 26.3, this court lacks jurisdiction to entertain an appeal.  Slaton v. State, 981 S.W.2d 208 (Tex.Cr.App.1998); Olivo v. State, supra; Rodarte v. State, supra; Shute v. State, 744 S.W.2d 96 (Tex.Cr.App.1988).  Appellant may be able to secure an out‑of‑time appeal by filing a post‑conviction writ pursuant to TEX. CODE CRIM. PRO. ANN. art. 11.07 (Vernon Supp. 2004 ‑ 2005).

This appeal is dismissed for want of jurisdiction.

PER CURIAM

December 23, 2004

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]The thirtieth day after August 19, 2004, fell on Saturday, September 18, 2004.  As per TEX.R.APP.P. 4.1(a), the deadline for filing the notice of appeal was extended to Monday, September 20, 2004.