Albert Wendell Sells v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-22-00408-CR
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ALBERT WENDELL SELLS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 19-33290
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MEMORANDUM OPINION
On December 9, 2022, we notified the parties that the notice of appeal had
been filed outside the time for which an extension of time may be granted for filing
a notice of appeal. The appellant, Albert Wendell Sells, filed a Motion to Correct the
Record. Sells argues his motion for new trial was overruled by operation of law on
December 1, 2022. We deny the Motion to Correct the Record and dismiss the
appeal.
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The trial court sentenced Sells on August 4, 2022. Sells timely filed a motion
for new trial on September 2, 2022. See Tex. R. App. P. 21.4(a). A trial court must
rule on a motion for new trial within 75 days after imposing or suspending sentence.
See Tex. R. App. P. 21.8(a). A motion for new trial is deemed denied when the period
prescribed in Rule 21.8(a) expires. See Tex. R. App. P. 21.8(c). Sells’s motion for
new trial was overruled by operation of law well before December 1, 2022.
When a defendant appeals from a conviction in a criminal case, the time to
file a notice of appeal runs from the date sentence is imposed or suspended in open
court. See Tex. R. App. P. 26.2(a). The notice of appeal must be filed “within 90
days after the day sentence is imposed or suspended in open court if the defendant
timely files a motion for new trial.” Id. Sells filed a notice of appeal on November
30, 2022, more than 90 days after the date the trial court imposed the sentence.
An appellate court may extend the time to file the notice of appeal if, within
15 days after the deadline for filing the notice of appeal, the defendant files a notice
of appeal in the trial court and files a motion for extension of time in the appellate
court. See Tex. R. App. P. 26.3. Sells failed to file a notice of appeal and a motion
for an extension of time within the time permitted by the rule. See id.
“Timely filing of a written notice of appeal is a jurisdictional prerequisite to
hearing an appeal.” Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012).
“If a notice of appeal is not timely filed, the court of appeals has no option but to
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dismiss the appeal for lack of jurisdiction.” Id. Sells did not file a notice of appeal
within the time permitted by Rule 26. He does not argue that he obtained an out-of-
time appeal from the Court of Criminal Appeals. We dismiss the appeal for lack of
jurisdiction. See Tex. R. App. P. 43.2(f).
APPEAL DISMISSED.
PER CURIAM
Submitted on January 31, 2023
Opinion Delivered February 1, 2023
Do Not Publish
Before Horton, Johnson and Wright, JJ.
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