Patricia B. Thomas v. State ( 2006 )

Opinion filed August 31, 2006

Opinion filed August 31, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00154-CR

                                                    __________

                                  PATRICIA B. THOMAS, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 411th District Court

                                                     San Jacinto County, Texas

                                                     Trial Court Cause No. 9208

                                                                   O P I N I O N

The jury convicted Patricia B. Thomas of manufacturing methamphetamine.  The trial court assessed her punishment at confinement for eight years.  Sentence was imposed in open court on March 27, 2006. A motion for new trial was not filed. On May 24, 2006, appellant filed a notice of appeal from the Ajudgment of conviction.@  We dismiss the appeal for want of jurisdiction.

Tex. R. App. P. 26.2 provides that, for a defendant to timely perfect an appeal, a proper notice of appeal must be filed within thirty days after the date the sentence is imposed in open court.  An appellate court may extend the time for perfecting an appeal provided that, within fifteen days after the deadline for filing the notice of appeal, the defendant files the notice of appeal with the clerk of the trial court and files a motion for extension of time with the clerk of the appellate court. Tex. R. App. P. 26.3; Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996).

In the present case, the notice of appeal was due to be filed on or before April 26, 2006, thirty days after the date the sentence was imposed.  To extend the time for perfection of the appeal pursuant to Texas law, both the notice of appeal and the motion requesting an extension were due to be filed on or before May 11, 2006, fifteen days after April 26, 2006.

On May 12, 2006, appellant filed a motion for extension with the Beaumont Court of Appeals. The Beaumont Court granted the motion in an order dated May 25, 2006, stating that, because the motion was timely mailed under Tex. R. App. P. 9.2(b), the motion was granted and the due date for the notice of appeal was extended until May 11, 2006, pursuant to Rule 26.3.  The appeal was subsequently transferred to this court.

On July 24, 2006, the clerk=s record was received in this court.  The notice of appeal in the record is file marked by the clerk of the trial court on May 24, 2006, fifty-eight days after the date the  sentence was imposed.  The clerk of this court notified the parties in writing that it appeared that an appeal had not been timely perfected and that the appeal would be subject to dismissal for want of jurisdiction unless appellant responded within fifteen days showing grounds for continuing the appeal. 

Appellant has responded by filing a motion to show cause why this appeal should not be dismissed for lack of jurisdiction.  In her motion, appellant contends that her notice of appeal was filed within thirty days from the trial court=s May 15, 2006, order placing her on shock probation.  However, the May 15 order is not an appealable order.

Absent a timely notice of appeal or compliance with Rule 26.3, this court lacks jurisdiction to entertain an appeal.  Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo, 918 S.W.2d 519; Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988).  Appellant may be able to secure an out-of-time appeal by filing a post-conviction writ pursuant to Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005).

Therefore, this appeal is dismissed for want of jurisdiction.

PER CURIAM

August 31, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.