Ray Stewart Marion v. State ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Ray Stewart Marion

Appellant

Vs.                   No. 11-03-00412-CR B Appeal from Midland County

State of Texas

Appellee

This is an attempted appeal arising from two convictions occurring in 1996.  A Midland County jury convicted appellant of aggravated sexual assault and indecency with a child by sexual contact, enhanced by two prior felony convictions.  Appellant appealed both convictions to the Eighth Court of Appeals in Cause No. 08-96-00150-CR, styled Ray Stewart Marion v. The State of Texas.  The Eighth Court of Appeals affirmed both convictions in a written opinion issued on June 5, 1997.

Appellant filed a subsequent notice of appeal on December 15, 2003, seeking to appeal Athe psychological evaluation decision that was conducted by Dr. John R. Howlett, Jr. on March 11, 1996, for the trial court.@^[1]  The Trial Court=s Certification of Defendant=s Right of Appeal filed in this case indicates that appellant does not have a right of appeal.  The certification outlines the procedural history of appellant=s convictions including the issuance of the mandate by the Eighth Court of Appeals on November 7, 1997.  The certification also states that the trial court refused appellant=s request to file an out-of-time appeal.  The issue before us is whether appellant timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

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). TEX.R.APP.P. 26.2(a) prescribes the time period in which a notice of appeal must be filed by the defendant in order to perfect an appeal in a criminal case:

(a) By the Defendant. The notice of appeal must be filed:

(1) within 30 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 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

Therefore, a defendant=s notice of appeal is timely if filed within 30 days after the day sentence is imposed or suspended in open court or within 90 days after sentencing if the defendant timely files a motion for new trial. See Rule 26.2(a); Olivo v.  State, supra at  522.

Appellant seeks to appeal a decision purportedly made on March 11, 1996.^[2]  Appellant=s sentences were imposed on March 28, 1996. The 30-day and 90-day deadlines specified by Rule 26.2(a) have long since expired.  This court=s authority for granting an extension of time to file a notice of appeal has also expired.  See TEX.R.APP.P. 26.3.  Therefore, appellant has failed to perfect his appeal by filing a timely notice of appeal.  Moreover, the trial court=s certification indicates that appellant does not possess a right of appeal.^[3]  TEX.R.APP.P. 25.2(d) requires that an appeal must be dismissed if a certification showing that the defendant has a right of appeal has not been made part of the appellate record.  Accordingly, we dismiss this appeal for want of jurisdiction.^[4]

PER CURIAM

January 15, 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]Effective September 1, 2003, appeals from Ector, Gaines, Glasscock, Martin, and Midland Counties are filed in the Eleventh Court of Appeals District.  See TEX. GOV=T CODE ANN. ' 22.201(l) (Vernon Supp. 2004).

^[2]Appellant expressly states in the documents that he has filed with this court that he is not appealing his original convictions.  Generally, a criminal defendant may only appeal from a final judgment.  See State v. Sellers, 790 S.W.2d 316, 321 (Tex.Cr.App.1990). We do not express an opinion as to whether the decision which appellant seeks to appeal is an appealable order.

^[3]As per our determination that appellant=s appeal is untimely, we agree with the trial court=s determination that appellant does not possess a right of appeal in this proceeding.

     ^[4] We express no opinion regarding the availability of post-conviction, habeas corpus relief under TEX. CODE CRIM. PRO. ANN. art. 11.07 (Vernon Supp. 2004).