COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-442-CR
MICHAEL Q. MAYS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Michael Q. Mays attempts to appeal his conviction for possession of a
controlled substance, cocaine, in the amount of less than one gram. We have
considered his “Motion to Extend Time to File Notice of Appeal.” We deny
appellant’s motion and dismiss the appeal for want of jurisdiction.
Pursuant to rule 26.2 of the rules of appellate procedure, a notice of
appeal must be filed within thirty days after the date sentence is imposed, or
within ninety days after the date sentence is imposed if the defendant files a
1
See T EX. R. A PP. P. 47.4.
timely motion for new trial.2 A jury found appellant guilty, and on August 29,
2007, the trial court sentenced him to thirteen months in state jail. Appellant
filed a motion for new trial; thus, his notice of appeal was due on November
27, 2007. Appellant, however, filed his notice of appeal on November 30,
2007.
Further, a timely motion to extend time for filing a notice of appeal would
have been due within fifteen days of November 27, 2007, or on December 12,
2007.3 Appellant’s motion to extend time to file notice of appeal was not filed
until January 9, 2008.
In appellant’s motion, counsel alleges that the late filing of the notice of
appeal was unintentional, was not appellant’s fault, and was caused by
miscounting the days from the imposition of the sentence. Counsel further
alleges that he did not discover that the notice of appeal was untimely until our
December 31, 2007 letter informing him that we were concerned that we
lacked jurisdiction. He requests that we suspend the rules of appellate
procedure pursuant to rules 2 and 26.3 to allow the late filing of appellant’s
notice of appeal.
2
T EX. R. A PP. P. 26.2(a)(1)–(2).
3
T EX. R. A PP. P. 26.3.
2
A notice of appeal that complies with the requirements of rule 26 is
essential to vest this court with jurisdiction. 4 While we sympathize with
counsel’s miscalculation of the appellate timetable, we may not suspend the
rules of appellate procedure pursuant to rule 2 to extend the time for perfecting
an appeal.5 Without a timely filed notice of appeal or a timely filed motion for
extension of time, we lack jurisdiction over the appeal and may take no action
other than to dismiss the appeal.6
Accordingly, we deny appellant’s “Motion to Extend Time to File Notice
of Appeal” and dismiss the appeal for want of jurisdiction.7
PER CURIAM
PANEL D: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 27, 2008
4
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
5
Id.; Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996).
6
Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522–23.
7
See T EX. R. A PP. P. 26.2(a), 43.2(f).
3