Donald Kenneth Mitchell v. State ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00472-CR
Donald Kenneth Mitchell, Appellant
v.
The State of Texas, Appellee
FROM THE 264TH DISTRICT COURT OF BELL COUNTY
NO. 77434, THE HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
Donald Kenneth Mitchell seeks to appeal his December 7, 2017 judgment of
conviction. The thirty-day deadline for perfecting the appeal was January 8, 2018, and the
deadline for seeking an extension of time to file the notice of appeal was January 22, 2018. See
Tex. R. App. P. 4.1, 26.2(a)(1), 26.3. But this notice of appeal was filed September 21, 2020.1
Under the circumstances, we lack jurisdiction to dispose of this purported appeal
in any manner other than by dismissing it for want of jurisdiction. See Olivo v. State, 918
S.W.2d 519, 522-23 (Tex. Crim. App. 1996) (concluding that when belated notice of appeal is
filed without timely motion for extension of time to file notice of appeal, appellate court must
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This is Mitchell’s second attempted appeal from this conviction. See Mitchell v. State,
No. 03-18-00210-CR, 2018 Tex. App. LEXIS 4196, at *1 (Tex. App.—Austin June 12, 2018, no
pet.) (mem. op., not designated for publication). The remedy for a late-filed notice of appeal is
to file a postconviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals
for consideration of an out-of-time appeal. See Tex. Code Crim. Proc. art. 11.07.
dismiss purported appeal for lack of jurisdiction); see also Slaton v. State, 981 S.W.2d 208, 210
(Tex. Crim. App. 1998) (holding that amendments to rules of appellate procedure did not affect
Olivo’s rationale requiring timely notice of appeal to vest appellate court with jurisdiction).
The appeal is dismissed for want of jurisdiction.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Baker and Kelly
Dismissed for Want of Jurisdiction
Filed: October 16, 2020
Do Not Publish
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