Darrell Everett Stewart, II v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00253-CR
Darrell Everett Stewart, II, Appellant
v.
The State of Texas, Appellee
FROM THE 483RD DISTRICT COURT OF HAYS COUNTY
NO. CR-21-1874-B, THE HONORABLE TANNER NEIDARDT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Darrell Everett Stewart, II, has filed a notice of appeal from his
judgment of conviction for the felony offense of assault-family violence. See Tex. Penal Code
§ 22.01(b)(2)(B). Because the notice of appeal is untimely, we must dismiss the appeal for want
of jurisdiction.
In criminal cases, the notice of appeal must be filed within 30 days after the day
sentence is imposed or suspended in open court or within 90 days if the defendant timely files a
motion for new trial. Tex. R. App. P. 26.2(a). The appellate court may extend the time to file
the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party
files in the trial court the notice of appeal and files in the appellate court a motion for extension
of time to file his notice of appeal. Tex. R. App. P. 26.3. However, in criminal cases, unlike in
civil cases, we cannot imply a motion for extension of time when a notice of appeal is filed
within fifteen days of the deadline. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App.
1996); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
Cf. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that “a motion for extension
of time is necessarily implied when an appellant acting in good faith” files notice of appeal
“within the fifteen-day period in which the appellant would be entitled to move to extend the
filing deadline”).
Stewart’s sentence was imposed in open court on March 24, 2023. He did not file
a motion for new trial. Thus, Stewart’s notice of appeal was due on April 23, 2023. Because
that date fell on a Sunday, his notice of appeal was due the following Monday, April 24, 2023.
See Tex. R. App. P. 4.1(a); Williams v. State, 603 S.W.3d 439, 448 (Tex. Crim. App. 2020).
Stewart’s notice of appeal was filed electronically on April 25, 2023. See Tex. R. App. P. 9.2(c).
He did not file a motion for extension of time. Consequently, the notice of appeal is untimely,
and we have no discretion to do anything other than dismiss the appeal. 1 See Castillo v. State,
369 S.W.3d 196, 198 (Tex. Crim. App. 2012) (“If a notice of appeal is not timely filed, the
court of appeals has no option but to dismiss the appeal for lack of jurisdiction.”); Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (“If an appeal is not timely perfected, a court of
appeals . . . . can take no action other than to dismiss the appeal.”).
1 The remedy for a late-filed notice of appeal is to file a post-conviction 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; Ex parte Axel, 757 S.W.2d 369, 374–75 (Tex.
Crim. App. 1988); Lucero v. State, No. 03-20-00064-CR, 2020 WL 938976, at *1 (Tex. App.—
Austin Feb. 27, 2020, no pet.) (mem. op., not designated for publication).
2
Accordingly, we dismiss the appeal for want of jurisdiction.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Dismissed for Want of Jurisdiction
Filed: June 28, 2023
Do Not Publish
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