Larry Craig Madore v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00218-CR
LARRY CRAIG MADORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1527527R
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MEMORANDUM OPINION1
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Appellant Larry Craig Madore attempts to appeal from his conviction and
his forty-five-year sentence for continuous sexual abuse of a young child along
with his convictions and his ten-year consecutive sentences for three counts of
sexual assault of a child.2 Because the record does not establish that he
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. §§ 21.02(b), 22.011(a) (West Supp. 2017).
properly invoked our jurisdiction by filing a timely notice of appeal, we dismiss the
appeal.
On February 8, 2018, the trial court sentenced Madore with respect to all
four of his convictions. He filed a timely motion for new trial. Therefore, his
notice of appeal was due ninety days after his sentencing date, on May 9, 2018.
See Tex. R. App. P. 4.1(a), 26.2(a)(2). He filed a notice of appeal on May 10,
2018—one day late—and did not file a motion for an extension of time to file the
notice of appeal. See Tex. R. App. P. 26.3(b).
We sent Madore a letter expressing our concern that we lack jurisdiction
because the notice of appeal was not timely. We informed him that unless he
showed grounds for continuing the appeal, we would dismiss it. We told him that
his response was to be verified if it depended on facts outside the record. See
Tex. R. App. P. 10.2(a).
Madore responded to our letter with an unverified letter. In the letter, his
counsel stated that a “paper copy of a notice of appeal . . . was submitted to the
clerk’s office by hand on March 9, 2018[,] but its whereabouts are unknown.”
Counsel stated that he had “tried to correct the problem between the trial court
and this court” but that he was “not exceedingly familiar with appellate practice.”
We asked the State to respond to counsel’s letter. In the State’s response,
it represented that a prosecutor had reviewed the trial court’s file and that no
“paper copy” of a March 2018 notice of appeal appeared in the file. The State
2
also emphasized that in Madore’s letter to this court, he did not attach a copy of
the “purported March 9, 2018 hand-delivered notice of appeal.”
A timely notice of appeal is essential to our jurisdiction; without a timely
notice of appeal or a timely motion for extension of time to file the notice of
appeal, we must dismiss the appeal. See Tex. R. App. P. 25.2(b), 26.2(a),
26.3(b); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
To the extent that Madore relies on the purported March 2018 “paper copy”
to contend that he timely filed a notice of appeal, such a notice of appeal does
not appear in the trial court’s record, nor has Madore supplied a replica of the
“paper copy” to this court. Furthermore, the parties have not stipulated that
Madore filed that document in March 2018, nor has Madore filed a motion for the
trial court to determine whether that document was filed but has been lost. See
Tex. R. App. P. 34.5(e). Thus, we conclude that we cannot predicate our
jurisdiction on Madore’s unsworn representation that he filed a notice of appeal in
March 2018.
We must therefore determine the effect of Madore’s May 10, 2018 notice
of appeal. As explained above, that notice of appeal was one day late, and
although Madore filed it within the time for filing a motion for the extension of time
to file a notice of appeal, he did not file such a motion. See Tex. R. App. P.
26.3(b). Under these circumstances, the notice of appeal was insufficient to
invoke our jurisdiction. See Tex. R. App. P. 25.2(b), 26.2(a)(2), 26.3(b); Olivo v.
State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) (“When a notice of appeal,
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but no motion for extension of time, is filed within the fifteen-day period, the court
of appeals lacks jurisdiction to dispose of the purported appeal in any manner
other than by dismissing it for lack of jurisdiction.”); see also Curtale v. State, No.
02-16-00256-CR, 2016 WL 5845929, at *1 (Tex. App.—Fort Worth Oct. 6, 2016,
no pet.) (mem. op., not designated for publication) (“Because appellant’s notice
of appeal was one day late and because he did not file a motion to extend the
time for filing the notice of appeal, we dismiss the appeal for want of
jurisdiction.”).
For these reasons, we dismiss this appeal for want of jurisdiction.
/s/ Wade Birdwell
WADE BIRDWELL
JUSTICE
PANEL: SUDDERTH, C.J.; WALKER and BIRDWELL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 19, 2018
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