Kelly James McCarty, Appellant v. The State of Texas, Appellee (2009)

MEMORANDUM OPINION

Kelly James McCarty seeks to appeal convictions for two counts of indecency with a child by contact.   Sentence was imposed on March 7, 2009, and there was a timely motion for new trial.   The deadline for perfecting appeal was therefore June 5, 2009.  Tex.R.App. P. 26.2(a)(2).   Notice of appeal was filed on June 15, but no extension of time for filing notice of appeal was requested.¹  Tex.R.App. P. 26.3.   McCarty's counsel has informed the Court that the notice of appeal was mailed on June 12, and therefore the mailbox rule does not apply.  Tex.R.App. P. 9.2(b).  Under the circumstances, we lack jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for want of jurisdiction.²  See Slaton v. State, 981 S.W.2d 208 (Tex.Crim. App.1998);  Olivo v. State, 918 S.W.2d 519, 522–23 (Tex.Crim.App.1996).   The appeal is dismissed.

FOOTNOTES

1.   There is no implied motion for extension of time in criminal appeals as there is in civil appeals.   Compare Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex.1997), with Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).

2.   McCarty must seek an out-of-time appeal by means of post-conviction habeas corpus.   See Tex.Code Crim. Proc. Ann. art. 11.07 (West Supp.2008).

Jan P. Patterson, Justice