In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00189-CR ______________________________
RANDALL KEITH MORROW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 03-0044X
Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Randall Keith Morrow attempts to appeal his conviction for aggravated kidnapping. See Tex. Pen. Code Ann. § 20.04 (Vernon 2003). He pled guilty to the indictment on May 10, 2003, and a jury imposed punishment at forty years' confinement. Because Morrow did not timely perfect his appeal, we dismiss his appeal for want of jurisdiction.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A criminal defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentence is imposed or suspended if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a). The defendant may file a motion for new trial no later than thirty days after the date the trial court imposed or suspended sentence in open court. Tex. R. App. P. 21.4(a). In calculating the time period available to Morrow, we begin counting on the day after the sentence is imposed or suspended and exclude Saturdays, Sundays, and legal holidays. See Tex. R. App. P. 4.1. We include the last day of the time period in our calculation unless it is a Saturday, Sunday, or legal holiday. See id.
Morrow's sentence was imposed on April 16, 2003. He filed a motion for new trial on June 3, 2003, more than thirty days after the date his sentence was imposed, and filed a notice of appeal on June 13, 2003. Morrow did not timely file a motion for new trial. Therefore, he needed to file his notice of appeal within thirty days of the date his sentence was imposed. He did not do so.
A late notice of appeal will invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo, 918 S.W.2d at 522. Morrow's notice of appeal was filed within fifteen days of May 28, 2003, the last day allowed for filing the notice. However, the record does not indicate Morrow moved for and received an extension of time to file his notice of appeal.
Therefore, we are without jurisdiction and dismiss Morrow's appeal.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 18, 2003
Date Decided: September 19, 2003
Do Not Publish
nreasonable manner." Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994).
Charleston has attached to his petition two copies of the indictment. Both bear typed allegations stating:
OFFENSE: ROBBERY
STATUTE: TEXAS PENAL CODE 29.02
On the second copy, the word "Aggravated" has been handwritten next to "ROBBERY," and the last numeral in "29.02" has been changed to read "29.03." Otherwise, the two copies are identical. Each bears a stamp of the Cass County District Clerk. Both allege the offense of robbery, then allege three prior felony convictions, and, finally, allege that Charleston "used and exhibited a deadly weapon, to-wit: a wrench during the commission of the felony offenses [sic] set out in the first paragraph hereof."
After jurisdiction vests in a trial court by the filing of an indictment, a defendant who fails to object to any defect, error, or irregularity of form or substance in that indictment, waives and forfeits the right to object to the defect, error, or irregularity; and the objection may not be raised on appeal or in any other post-conviction proceeding. Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990); see also Ex parte Smith, 178 S.W.3d 797, 803 (Tex. Crim. App. 2005). In order to complain of a defect of form or substance in an indictment, a defendant must object to the defect at trial. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005).
The indictment in this case put Charleston on notice that he was charged with the offense of aggravated robbery, irrespective of whether that crime was listed in the document's style. The last paragraph alleged the use and exhibition of a deadly weapon during the offense. An indictment is sufficient if it accuses one of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute. See Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997); Studer, 799 S.W.2d at 271. However, even if Charleston had a complaint about the indictment, he was required to object before his trial began.
Charleston has failed to demonstrate that he is entitled to mandamus relief. We deny his petition.
Bailey C. Moseley
Justice
Date Submitted: August 13, 2007
Date Decided: August 14, 2007
1. This Court affirmed Charleston's conviction and sentence for armed robbery. Charleston
v. State, 33 S.W.3d 96 (Tex. App.--Texarkana 2000, pet. ref'd).
2. 3. 4.