Ricky Clere v. State ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
RICKY CLERE, §
No. 08-10-00141-CR
Appellant, §
Appeal from the
v. §
168th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20090D05623)
§
MEMORANDUM OPINION
Appellant, Ricky Clere, attempts to appeal his conviction for burglary of a building. Finding
Appellant failed to timely file his notice of appeal, we dismiss the appeal for want of jurisdiction.
BACKGROUND
Appellant was indicted for burglary of a building. On February 4, 2010, he pleaded guilty
to the offense and the trial court, following Appellant’s plea agreement with the State, assessed
sentence at one year incarceration in state jail. Subsequently, on April 15, 2010, Appellant wrote
a letter to the district clerk declaring his innocence and asking that his case be reopened. Then on
May 4, 2010, he wrote the trial judge, requesting permission to appeal his case. The letter filed May
4, 2010, was treated as Appellant’s notice of appeal.
ANALYSIS
A timely notice of appeal is necessary to invoke this Court’s jurisdiction. Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Moreover, that notice of appeal must comply with the
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requirements of Rule 26 to vest our Court with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210
(Tex. Crim. App. 1998). If an appeal is not timely perfected, we do not obtain jurisdiction to address
the merits of the appeal and can take no action other than to dismiss the appeal. Id.
In a criminal case, the notice of appeal must be filed within: (1) 30 days after the day
sentence is imposed or suspended in open court, or after the day the trial court enters an appealable
order; or (2) 90 days after the day sentence is imposed in open court if the defendant timely files a
motion for new trial. TEX . R. APP . P. 26.2(a). A motion for new trial must be filed within 30 days
from the date the trial court imposed sentence in open court. TEX . R. APP . P. 21.4(a).
Here, Appellant was sentenced in court on February 4, 2010. The clerk’s record does not
reflect that he ever filed a motion for new trial. Thus, Appellant was required to file his notice of
appeal by March 6, 2010, or given Rule 26.3’s fifteen-day extension, by March 21, 2010. See TEX .
R. APP . P. 26.2(a); TEX . R. APP . P. 26.3. He did not. Rather, he waited until May 4, 2010. That was
simply too late. Accordingly, Appellant’s notice of appeal is untimely and we lack jurisdiction to
entertain it.1 Slaton, 981 S.W.2d at 210.
On May 5, 2010, we notified the parties that the notice of appeal was not timely perfected
and requested that they show grounds for continuing the appeal. Neither party has filed a written
response. Therefore, based on our discussion above, we dismiss the appeal for want of jurisdiction.
GUADALUPE RIVERA, Justice
July 7, 2010
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Although we may interpret Appellant’s letter filed on April 15, 2010, as a motion for new trial, it too was
untimely filed, and thus did not extend the time for Appellant to file his notice of appeal. See T EX . R. A PP . P.
21.4(a); T EX . R. A PP . P. 26.2(a)(2).
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Before Chew, C.J., McClure, and Rivera, JJ.
(Do Not Publish)
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