Cordell Moody v. State ( 2010 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00121-CR

                                                ______________________________

                                        CORDELL MOODY, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 276th Judicial District Court

                                                            Marion County, Texas

                                                           Trial Court No. F13527

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Cordell Moody has filed a notice of appeal, received by this Court on June 30, 2010.  He states that he appeals from the “finally judgment of the state district court of Jefferson, Tx. under number F13527.  order of the judgment, dismissed entered on about the 2nd day of June, 2010.” Following the notice of appeal, he has attached five more pages, which wander through complaints about a slip and fall while in solitary confinement, and his claimed need for a number of operations and medicine; a list of witnesses who can presumably show that he was unlawfully convicted; a complaint about his appointed attorney; the denial of access to a law library, and a list of witnesses who can presumably show the denial of that access; a certificate of service listing a number of individuals to whom the documents were sent; and finally, an application to proceed as a pauper.

            We contacted the district clerk of Marion County in an attempt to determine the viability of the notice of appeal.   There is no recent judgment in this case.  It appears that Moody was placed on community supervision in 2005 on a guilty plea and that a motion to revoke his community supervision has recently been filed and counsel has been appointed to represent Moody. If Moody is attempting to appeal from his conviction, the time periods have long since run under which such an appeal could be brought.  See Tex. R. App. P. 26.2. 

            As of this date, no other action by a trial court from which an appeal could be brought has been taken in this case.   In the absence of any appealable order or judgment, we have no jurisdiction to entertain this appeal.

            We dismiss the appeal for want of jurisdiction.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          July 7, 2010

Date Decided:             July 8, 2010

Do Not Publish          

ideograph; line-height:200%'>            A late notice of appeal is considered timely and thus invokes the appellate court’s jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time.  Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996).  Further, when a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id. (citing Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993)).

            The Texas Court of Criminal Appeals interprets Rule 26.3 of the Texas Rules of Appellate Procedure to strictly require an appellant in a criminal case to file his or her notice of appeal and a motion for extension within the fifteen-day period for filing a late notice of appeal.  Id. at 522–26; see Tex. R. App. P. 26.3.  The Texas Court of Criminal Appeals has expressly held that without a timely-filed notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal.  See Olivo, 918 S.W.2d at 522; see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998).

            According to Rule 26.2 of the Texas Rules of Appellate Procedure and the above caselaw, Dean had thirty days after the day sentence was imposed to file a notice of appeal, or timely file a motion for new trial and thereby extend his time to file a notice of appeal.  See Tex. R. App. P. 21.4, 26.2(a)(1).  No motion for new trial was filed.  Dean, therefore, had until January 11, 2010,^[1] to file a notice of appeal.  Dean’s notice of appeal was placed in the mail one day late, on January 12, 2010.^[2]  Further, no motion for extension of time to file the notice of appeal was filed. Hence, this appeal is untimely, and we are without jurisdiction to hear this case.

            We dismiss this appeal for want of jurisdiction.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          February 11, 2010      

Date Decided:             February 12, 2010

Do Not Publish

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^[1]The thirtieth day, January 9, fell on a Saturday, thus extending Dean’s time until the following Monday, January 11, 2010. Tex. R. App. P.  4.1.

^[2]We do note that Dean’s certificate of service notes that a copy of the notice of appeal was hand delivered to the district attorney’s office January 11, 2010.  Delivery of the notice of appeal to the district attorney does not constitute filing with the proper authority.  Tex. R. App. P. 9.2.