Marcus Demon Lair v. State

Opinion issued June 17, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-01080-CR

NO. 01-09-01102-CR

NO. 01-09-01103-CR

NO. 01-09-01104-CR

NO. 01-09-01105-CR

NO. 01-09-01106-CR

NO. 01-09-01107-CR

NO. 01-09-01108-CR

NO. 01-09-01109-CR

NO. 01-09-01110-CR

NO. 01-09-01111-CR

NO. 01-09-01112-CR

NO. 01-09-01113-CR

NO. 01-09-01114-CR

NO. 01-09-01115-CR

NO. 01-09-01116-CR

NO. 01-09-01117-CR

NO. 01-09-01118-CR

NO. 01-09-01119-CR

NO. 01-09-01120-CR

NO. 01-09-01121-CR

NO. 01-09-01122-CR

NO. 01-09-01123-CR

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Marcus Demon Lair, Appellant

V.

The State of Texas, Appellee

 

 

On Appeal from the 278th District Court

Grimes County, Texas

Trial Court Case No. 16,185 (Counts II, III, IV, V, VII, IX, X, XI, XII, XIII, XIV, XV, XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXVIII, XXIX, XXXI)

 

 

O P I N I O N

          A jury convicted appellant, Marcus Demon Lair, of one count of attempted capital murder, seven counts of aggravated robbery, seven counts of aggravated kidnapping, six counts of deadly conduct, one count of burglary of a habitation, and one count of theft.  The jury then assessed punishment at confinement for life and a $10,000 fine for the attempted capital murder offense, confinement for life for each aggravated robbery and aggravated kidnapping offense, ten years’ confinement for each deadly conduct offense, 20 years’ confinement for the burglary-of-a-habitation offense, and two years’ confinement for the theft offense.  The sentences run concurrently.  We dismiss the appeals for want of jurisdiction.

          Appellant’s counsel on appeal has filed a brief stating that the appeals are without merit, frivolous, and must be either affirmed or dismissed.  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).  Specifically, counsel notes that the notices of appeal are untimely.  We agree.

The time limit for perfecting an appeal from a judgment of conviction begins to run on the day that sentence is imposed or suspended in open court. Tex. R. App. P. 26.2(a); see Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993) (written judgment of conviction is not “appealable order” within meaning of rule; the defendant does not have option of calculating time limit from day written judgment is signed and entered by trial court) (construing predecessor rule). In these cases, sentence was imposed in open court on October 23, 2007.  Because no motion for new trial was filed, the notices of appeal were due 30 days later, on November 22, 2007.  Tex. R. App. P. 26.2(a).  Notices of appeal were not filed until November 30, 2007, over a week too late.

The time for filing the notice of appeal may be extended if, within fifteen days of the deadline for filing the notice of appeal, the appellant files the notice of appeal and a motion complying with Rule 10.5(b). See Tex. R. App. P. 26.3; 10.5(b).  Although appellant’s notices of appeal were filed within fifteen days of the deadline, no motions for extension of time were filed.  “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 v. State918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Although the Court of Criminal Appeals has interpreted Rule 26.3 similarly to the Texas Supreme Court in regard to amending a defective notice of appeal, see Few v. State, 230 S.W.3d 184, 189-90 (Tex. Crim. App. 2007); Bayless v. State, 91 S.W.3d 801 (Tex . Crim. App. 2002), the court has not held that an extension is implied if a notice of appeal is filed within fifteen days after the deadline. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (holding that in civil cases, “a motion for extension of time is necessarily implied” when appellant, acting in good faith, files notice of appeal beyond time permitted by Rule 26.1, but within fifteen-day period in which appellant would be entitled to move to extend filing deadline under Rule 26.3).

This Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3.  See Olivo, 918 S.W.2d at 522.  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).

 

 

 

 

Accordingly, we dismiss the appeals for want of jurisdiction.  We also dismiss all pending motions.

 

 

                                                          Sherry Radack

                                                          Chief Justice

                  

 

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

Justice Sharp, concurring.

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