TATIANA MARIE SZABO v. THE STATE OF TEXAS

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Court of Appeals of Texas, Houston (1st Dist.).

TATIANA MARIE SZABO, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-17-00024-CR

Decided: March 28, 2017

Panel consists of Justices Jennings, Higley, and Massengale.

MEMORANDUM OPINION

A jury found appellant, Tatiana Marie Szabo, guilty of the misdemeanor offense of driving while intoxicated.1 The trial court assessed her punishment at confinement for 180 days and a fine of $800, suspended the sentence, and placed her on community supervision for fifteen months. Appellant has filed a notice of appeal and a motion for an extension of time to file her notice of appeal.

We dismiss the appeal for lack of jurisdiction.

We cannot exercise jurisdiction over an appeal without a timely filed notice of appeal. See TEX. R. APP. P. 26.2(a); Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012) (citing Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)). A defendant's notice of appeal is timely if filed within thirty days after the date sentence is imposed or suspended in open court or within ninety days after that date if the defendant timely files a motion for new trial. TEX. R. APP. P. 26.2(a); see Bayless v. State, 91 S.W.3d 801, 805 (Tex. Crim. App. 2002); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). In this case, the trial court suspended the imposition of appellant's sentence and placed her on community supervision on November 29, 2016. The clerk's record filed in this Court does not reflect that appellant filed a motion for new trial. See TEX. R. APP. P. 21.4(a). Because a timely motion for new trial was not filed, appellant's notice of appeal was due to be filed no later than December 29, 2016. See id. 26.2(a)(1); Olivo, 918 S.W.2d at 522. Appellant filed her notice of appeal on January 5, 2017.

The time for filing a notice of appeal may be extended if, within fifteen days of the deadline for filing the notice of appeal, an appellant files a notice of appeal and a motion for an extension of time to file the notice of appeal. TEX. R. APP. P. 26.3; Strange v. State, 258 S.W.3d 184, 186 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). To extend the time for filing her notice of appeal, appellant must have filed the notice of appeal and a motion for extension no later than January 13, 2017. See Strange, 258 S.W.3d at 186–87 (citing Olivo, 918 S.W.2d at 523; Douglas v. State, 987 S.W.2d 605, 606 (Tex. App.—Houston [1st Dist.] 1999, no pet.)) (“The limited, 15-day extended time period applies to both the notice and the motion for extension; both must be filed within the 15-day time period.”). Appellant did not file her motion for an extension of time until January 18, 2017. Because she did not file her motion within the rule 26.3 fifteen-day period, we do not have jurisdiction to extend the time to file appellant's notice of appeal. See, e.g., Davis v. State, No. 03-14-00566-CR, 2014 WL 4725769, at *1 (Tex. App.—Austin Sept. 19, 2014, no pet.) (mem. op., not designated for publication).

“When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction.” Olivo, 918 S.W.2d at 523; see, e.g., Greer v. State, No. 14-11-00898-CR, 2012 WL 130952, at *1 (Tex. App.—Houston [14th Dist.] Jan. 12, 2012, no. pet.) (mem. op., not designated for publication) (denying appellant's untimely motion for extension, granting State's motion to dismiss, and dismissing appeal). Accordingly, we deny appellant's motion for extension of time to file her notice of appeal and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions as moot.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 49.04 (Vernon Supp. 2016).

PER CURIAM