Michael Pullen v. State ( 2013 )


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  • Opinion issued October 1, 2013
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-12-00968-CR
    ———————————
    MICHAEL PULLEN, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the County Criminal Court at Law No. 8
    Harris County, Texas
    Trial Court Case No. 1810704
    MEMORANDUM OPINION
    Appellant, Michael Pullen, attempts to appeal his August 24, 2012
    conviction for the misdemeanor offense of driving while intoxicated. See TEX.
    PENAL CODE ANN. § 49.04 (West Supp. 2012). Appellant did not file a motion for
    new trial or a motion for extension of time to file his notice of appeal. See TEX. R.
    APP. P. 26.2(a)(2), 26.3(b); Olivo v. State, 
    918 S.W.2d 519
    , 522 (Tex. Crim. App.
    1996) (requiring both notice of appeal and motion for extension to be filed within
    15 days of original due date for notice of appeal). Therefore, appellant’s notice of
    appeal was due on or before September 24, 2012. See TEX. R. APP. P. 26.2(a)(1).
    Appellant’s pro se notice of appeal was filed-stamped in the trial-court
    clerk’s office on October 2, 2012—eight days after the deadline. Nevertheless, the
    notice was received by the trial court clerk within 10 days of the deadline and
    therefore may have been timely filed under the “prisoner mailbox rule,” so we
    notified appellant of our intent to dismiss this appeal for want of jurisdiction and
    provided him with an opportunity to respond to the notice and show that his notice
    was timely filed. See TEX R. APP. P. 9.2(b) (stating document is considered timely
    filed if properly mailed by deadline and received by clerk within 10 days of
    deadline); Campbell v. State, 
    320 S.W.3d 338
    , 342 (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.”).       Further,
    because appellant was represented by appointed counsel in the trial court but filed
    his notice of appeal pro se, we abated the appeal for the trial court to appoint
    counsel to assist appellant in responding to our notice. See TEX. CODE CRIM.
    PROC. ANN. arts. 1.051(a), (c), (d)(1), 26.04(j)(2) (West Supp. 2012).
    2
    On August 6, 2013, the trial court appointed the Harris County Public
    Defender’s Office to represent appellant. On August 27, 2013, appellant filed an
    affidavit in the trial court, stating that he has had an opportunity to confer with
    counsel, Nicolas Hughes, that he has no proof that he timely mailed his notice of
    appeal pursuant to the “prisoner mailbox rule,” that he “wish[es] to dismiss [his]
    appeal so [he] can seek an out-of-time appeal by means of application for writ
    habeas corpus [sic],” and that he “knowingly and voluntarily dismiss[es] [his]
    appeal, with the understanding that [he] did not file [his] notice of appeal on time.”
    A notice of appeal that complies with the requirements of Rule 26 is
    essential to vest this court with jurisdiction. 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 we cannot exercise jurisdiction over an
    appeal. See 
    Olivo, 918 S.W.2d at 522
    ; see also 
    Slaton, 981 S.W.2d at 210
    .
    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 523
    .
    Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
    APP. P. 43.2(f). We dismiss all pending motions as moot. We direct the Clerk to
    issue the mandate within 10 days of the date of this opinion. See TEX. R. APP. P.
    18.1.
    3
    PER CURIAM
    Panel consists of Chief Justice Radack and Justices Bland and Huddle.
    Do not publish. TEX. R. APP. P. 47.2(b).
    4
    

Document Info

Docket Number: 01-12-00968-CR

Filed Date: 10/1/2013

Precedential Status: Precedential

Modified Date: 10/16/2015