Nathaniel Threadgill v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00276-CR

______________________________

NATHANIEL THREADGILL, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 05F0042-102

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Nathaniel Threadgill appeals from his conviction by a jury for unauthorized use of a motor vehicle. Sentence was imposed November 15, 2005. No motion for new trial or other motion was filed that would serve to extend the time for filing the notice of appeal. The notice of appeal was filed thirty-one days later, December 16, 2005. Although the motion indicates that hand delivery was made on opposing counsel before that date, it does not indicate that the notice was mailed before that date, and it contains no other internal dating. We contacted the district clerk, who informed us that there is no indication in their records that they received the document through the mail.

            A defendant must file his or her notice of appeal "(1) within 30 days after the day sentence is imposed  or  suspended  in  open  court,  or  after  the  day  the  trial  court  enters  an  appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." Tex. R. App. P. 26.2(a). The notice was untimely.

            A late notice of appeal is considered timely and thus invokes the appellate court's 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 v. State, 918 S.W.2d 519, 520 (Tex. Crim. App. 1996). Further, when a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id., citing Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993).

            Because the notice of appeal was untimely filed, and because no timely motion to extend time was filed, we have no jurisdiction over this appeal.

            We dismiss the appeal for want of jurisdiction.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          January 17, 2006

Date Decided:             January 18, 2006

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00013-CV

                                                ______________________________

 

 

                                 STEVEN MICHAEL PERRY, Appellant

 

                                                                V.

 

                                       MARGARET FRENK, Appellee

 

 

                                                                                                  

 

 

                                           On Appeal from the County Court at Law 2

                                                             Gregg County, Texas

                                                       Trial Court No. 2010-0343-C

 

                                                                                                   

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

 

            Appellant, Steven Michael Perry, has filed with this Court a motion to dismiss the pending appeal in this matter.  Perry represents to this Court that the parties have reached an agreement regarding the substance of the appeal.  In such a case, no real controversy exists, and in the absence of a controversy, the appeal is moot.

            We grant the motion and dismiss this appeal.

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          February 22, 2011

Date Decided:             February 23, 2011