Lamont Dewberry v. State ( 2005 )

lee, elmer edward v. state

                     NO. 12-05-00276-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

  TYLER, TEXAS

  LAMONT DEWBERRY,                                    §     APPEAL FROM THE 241ST

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §     SMITH COUNTY, TEXAS

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  MEMORANDUM OPINION

PER CURIAM

            This appeal is being dismissed for want of jurisdiction. Appellant was convicted of the offense of aggravated assault with a deadly weapon, and punishment was assessed at imprisonment for 75 years. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. Tex. R. App. P. 26.2(a). Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after the sentence is imposed or suspended in open court. Id. Appellant’s sentence was imposed in open court on February 23, 2005, and he did not file a motion for new trial. Therefore, his notice of appeal was due to have been filed on or before March 25, 2005. However, Appellant did not file his notice of appeal until September 2, 2005. Moreover, Appellant did not file a timely motion for extension of time to file his notice of appeal as authorized by Texas Rule of Appellate Procedure 26.3.

             On September 8, 2005, this Court notified Appellant, pursuant to Rules 26.2 and 37.2, that the clerk’s record did not show the jurisdiction of this Court, and it gave him until September 19, 2005 to correct the defect. On September 15, 2005, Appellant responded to our notice urging that we allow him to pursue his appeal because his trial counsel gave timely oral notice of Appellant’s intent to appeal, but did not file a written notice of appeal. Appellant further states that his appellate counsel was not appointed until September 2, 2005, approximately one week before this Court notified Appellant of the defect in the clerk’s record.

            A timely notice of appeal is essential to vest this Court with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because Appellant’s notice of appeal was untimely, we have no jurisdiction over this appeal. See Olivo, 918 S.W.2d at 526. Accordingly, we dismiss the appeal for want of jurisdiction.

Opinion delivered September 30, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)