RICHARD BONETTE LAWSON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

RICHARD BONETTE LAWSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-11-00144-CR

Decided: February 23, 2011

Before Justices O'Neill, FitzGerald, and Lang

MEMORANDUM OPINION

Opinion By Justice O'Neill

Richard Bonette Lawson was convicted of aggravated kidnapping.   A sentence of twenty-five years' imprisonment was imposed in open court on December 9, 2010.   No motion for new trial was filed;  therefore appellant's notice of appeal was due by Monday, January 10, 2011.   See Tex.R.App. P. 4.1(a), 26.2(a)(1).   Appellant mailed a pro se notice of appeal from the Dallas County Jail. The envelope in which the notice of appeal was mailed is post-marked January 14, 2011 and the notice of appeal is file-stamped January 26, 2011.   Appellant filed a motion to extend time to file his notice of appeal in this Court on February 7, 2011.   For the reasons set forth, we conclude we lack jurisdiction over the appeal.

“Jurisdiction concerns the power of a court to hearing and determine a case.”  Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).   The jurisdiction of an appellate court must be legally invoked, and if not, the power of the court to act is as absent as if it did not exist.   See id.   To invoke the Court's jurisdiction under rule of appellate procedure 26.3, appellant had to file both his notice of appeal in the trial court and an extension motion in this Court within the fifteen-day period provided by the rule.   See id.;   see also Tex.R.App. P. 26.3(a), (b);  Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998) (per curiam).   If both the notice of appeal and extension motion are not filed within the fifteen-day period, this Court does not have jurisdiction to take any action except to dismiss the appeal.   See Olivo, 918 S.W.2d at 523;  Slaton, 981 S.W.2d at 210.

In this case, appellant mailed his notice of appeal from the Dallas County Jail on January 14, 2011, which was within fifteen days of January 10, 2011.   The notice of appeal was not file-stamped until January 26, 2011, one day after the end of the fifteen-day period and more than ten days after it was mailed.   However, for purposes of this opinion, we will treat January 14, 2011 as the operative date.   See Campbell v. State, 320 S.W.3d 338, 342 (Tex.Crim.App.2010).   Therefore, we conclude appellant filed his notice of appeal within the fifteen-day period provided by rule 26.3(a).   But, appellant did not file his extension motion in this Court until February 7, 2011, more than fifteen days after January 10, 2011.   Therefore, the extension motion was untimely.

In the extension motion appellate counsel recites late notification of her appointment to represent appellant as the reason for the delay and states it would be an absurdity to deny the appeal in this case when the Court has two other pending appeals of appellant's that arose out of the same trial court proceedings.1  This Court, however, does not have the authority to assert jurisdiction over an appeal when there is not a timely notice of appeal.   See Slaton, 981 S.W.2d at 210.   Rather, in such a situation, the only action this Court may take is to dismiss the appeal for want of jurisdiction.  Id.

Because appellant did not file both his notice of appeal and his extension motion within the fifteen-day period provided by rule 26.3, we have no jurisdiction over the appeal.   See Olivo, 918 S.W.2d at 523, 526;  Slaton, 981 S.W.2d at 210.   Accordingly, we deny appellant's February 7, 2011 motion to extend time to file his notice of appeal.

We dismiss the appeal for want of jurisdiction.

FOOTNOTES

FN1. Those appeals are docketed as cause nos.   05-11-00113-CR and 05-11-00114-CR..  FN1. Those appeals are docketed as cause nos.   05-11-00113-CR and 05-11-00114-CR.

MICHAEL J. O'NEILL JUSTICE

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