BRANDON LEE NIX APPELLANT v. THE STATE OF TEXAS STATE FROM COUNTY CRIMINAL COURT AT LAW NO OF DENTON COUNTY 2010 120 50 500 31 03 2003 (2010)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

Nix's motion for new trial was due June 4, 2010, but it was not filed until June 7, 2010.   See Tex.R.App. P. 21.4(a).   Therefore, his notice of appeal was also due June 4, 2010.   See Tex.R.App. P. 26.2(a).   On August 20, 2010, Nix filed his notice of appeal with a motion to extend time to file the notice of appeal.²

On September 9, 2010, we notified Nix's counsel of the apparent untimeliness of the appeal;  requested that he advise whether the motion for new trial was properly addressed, stamped, and mailed by the United States Postal Service to the proper trial court clerk on or before June 4, 2010;  stated that any response must be filed on or before September 20, 2010;  and stated that the appeal would be dismissed for want of jurisdiction if the court determined that the appeal was not timely perfected.   See Tex.R.App. P. 9.2(b)(1), (2).³  We have received no response.

A notice of appeal that complies with the requirements of rule 26 is essential to vest this court with jurisdiction.   See Tex.R.App. P. 26.2(a)(1) (providing that notice of appeal must be filed within thirty days of sentencing).   The court of criminal appeals has expressly held that, without a timely filed notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal.  Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).   Because there has been no showing that Nix's motion for new trial was timely filed, his notice of appeal was correspondingly untimely.   Therefore, we dismiss the appeal for want of jurisdiction.   See Tex.R.App. P. 43.2(f).

PANEL:  MCCOY, MEIER and GABRIEL, JJ.

Tex.R.App. P. 47.2(b)

DELIVERED:  October 14, 2010

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. We denied Nix's motion to extend time to file his notice of appeal on September 27, 2010, because without a showing that the motion for new trial was timely filed, the motion to extend time to file the notice of appeal was also untimely.   See Tex.R.App. P. 26.3..  FN2. We denied Nix's motion to extend time to file his notice of appeal on September 27, 2010, because without a showing that the motion for new trial was timely filed, the motion to extend time to file the notice of appeal was also untimely.   See Tex.R.App. P. 26.3.

FN3. Under rule of appellate procedure 9.2(b), a notice of appeal is timely only if it was deposited with the United States Postal Service on or before the last day for filing and received by the trial court within ten days after the filing deadline.  Tex.R.App. P. 9.2(b)(1).   Our September 9, 2010 letter also listed the items that we would accept as evidence of proof of mailing..  FN3. Under rule of appellate procedure 9.2(b), a notice of appeal is timely only if it was deposited with the United States Postal Service on or before the last day for filing and received by the trial court within ten days after the filing deadline.  Tex.R.App. P. 9.2(b)(1).   Our September 9, 2010 letter also listed the items that we would accept as evidence of proof of mailing.