Jeffrey Frank Gordon v. State ( 2006 )

Opinion filed September 28, 2006

Opinion filed September 28, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-06-00245-CR

                                                    __________

                              JEFFREY FRANK GORDON, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                          On Appeal from the 91st District Court

                                                        Eastland County, Texas

                                             Trial Court Cause No. CR-05-20635

                                                                   O P I N I O N

The jury convicted Jeffrey Frank Gordon of felony driving while intoxicated.  Appellant entered a plea of true to the enhancement allegation.  The trial court assessed punishment at confinement for eight years.  We dismiss.

The trial court imposed the sentence in open court on July 18, 2006.   Both the motion for new trial and the notice of appeal were filed in the trial court on September 15, 2006.  A motion for extension of time to file both the motion for new trial and the notice of appeal was filed in this court on the same day, September 15, 2006.

Tex. R. App. P. 21.4 provides that a motion for new trial in a criminal case must be filed within thirty days from the date the sentence was imposed in open court.  The motion for new trial in this case was filed fifty-nine days after the date of sentencing and is not timely.  There is no provision for an extension of time in which to file a motion for new trial.

In order to perfect an appeal under Tex. R. App. P. 26.2 where a motion for new trial has not been timely filed, the notice of appeal must be filed within thirty days from the date of sentencing.  Appellant=s notice of appeal was not filed until the fifty-ninth day.  Tex. R. App. P. 26.3 only allows an extension of time to be granted when both the notice of appeal and a motion for extension of time are filed within fifteen days of the original due date for the notice appeal.  In this case, neither the  notice of appeal nor the motion was timely filed under Rule 26.3. 

Absent a timely notice of appeal or the granting of a timely motion for extension of time, this court does not have jurisdiction to entertain an appeal.  Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996); 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).

The motion is overruled, and the appeal is dismissed for want of jurisdiction.

PER CURIAM

September 28, 2006

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

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.