James Harold Mervin v. State ( 2001 )

lee, elmer edward v. state NO. 12-01-00278-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES HAROLD MERVIN,

§ APPEAL FROM THE

APPELLANT

V.

§ COUNTY COURT AT LAW OF

THE STATE OF TEXAS,

APPELLEE

§ NACOGDOCHES COUNTY, TEXAS

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PER CURIAM

This appeal is being dismissed for want of jurisdiction. Appellant was convicted of the offense of driving while intoxicated and on June 14, 2001, punishment was assessed at thirty days in jail and a $1,500.00 fine. Thereafter, Appellant timely filed a motion for new trial. Texas Rule of Appellate Procedure 26.2 ⁽¹⁾ 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. 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. Since Appellant timely filed a motion for new trial, his notice of appeal was due to have been filed on or before September 12, 2001. However, Appellant did not file his notice of appeal until September 26, 2001. Moreover, Appellant did not file a timely motion for extension of time to file his notice of appeal as authorized by Tex. R. App. P. 26.3.

On November 21, 2001, 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 December 3, 2001 to correct the defect. As of December 12, 2001, Appellant has failed to respond to our notice or otherwise demonstrate the jurisdiction of this Court. Because this Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998).

The appeal is dismissed for want of jurisdiction.

Opinion delivered December 19, 2001.

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

(DO NOT PUBLISH)

1. All further rule references will be to the current edition of the Texas Rules of Appellate Procedure unless otherwise specified.