Anais Espinosa v. State ( 2011 )

NO. 07-11-00210-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 28, 2011
ANAIS ESPINOSA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A14705-0211; HONORABLE ROBERT W. KINKAID JR., JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Anais Espinosa attempts to appeal her conviction for “forgery financial
instrument”1 and sentence of eighteen months’ confinement in a state jail. On the
State’s motion, the trial court revoked appellant’s deferred adjudication community
supervision and adjudicated her guilty of the charged offense. Sentence was imposed
on March 1, 2011. On May 16, 2011, appellant filed a pro se notice of appeal. We do
not have a clerk’s record, but according to the information form filed in this court by the
clerk of the trial court appellant did not file a motion for new trial.
1
See Tex. Penal Code Ann. § 32.21(b) (West 2011).
By letter, we notified appellant her notice of appeal appeared untimely thus
depriving us of appellate jurisdiction. We afforded her an opportunity to file documents
or matters she considered necessary for determination of our jurisdiction. On June 6,
we were notified by the clerk of the trial court that appellate counsel for appellant was
appointed on June 2. We accordingly extended the deadline for appellant’s response
until June 23. Appellate counsel has filed a response, indicating his investigation has
not located information that would show appellant filed a timely notice of appeal.
Our appellate jurisdiction is triggered through a timely notice of appeal. 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). Rule of Appellate Procedure 26.2(a) requires a notice of appeal
be filed within 30 days after the day sentence is imposed in open court or within 90 days
after imposition of the sentence if a timely motion for new trial is filed. Tex. R. App. P.
26.2(a)(1),(2). A motion for new trial is timely if filed “before, but no later than 30 days
after, the date when the trial court imposes or suspends sentence in open court.” Tex.
R. App. P. 21.4(a).
Because appellant did not file a motion for new trial, her notice of appeal was due
within thirty days after the date sentence was imposed in open court. However,
appellant’s notice of appeal was filed seventy-six days after imposition of sentence and
was therefore untimely. Our appellate jurisdiction has not been invoked.
2
Consequently, we dismiss the appeal for want of jurisdiction.
James T. Campbell
Justice
Do not publish.
3