In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00084-CR
______________________________
ROBERT LEROY CLARK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Fifth Judicial District Court
Cass County, Texas
Trial Court No. 2004F00272
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Robert Leroy Clark attempts to appeal his conviction by a jury for the offense of aggravated
assault causing serious bodily injury by use of a deadly weapon. See TEX . PENAL CODE ANN .
§ 22.02(a)(1) (Vernon Supp. 2008). Clark's sentence was imposed March 5, 2009. His notice of
appeal was dated April 14, 2009, and filed April 16, 2009. We received the clerk's record May 8,
2009. The issue before us is whether Clark timely filed his notice of appeal. We conclude that he
did not and dismiss the attempted 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). Rule 26.2(a) of the Texas Rules of Appellate Procedure
prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect
an appeal in a criminal case. A 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 sentencing if the
defendant timely files a motion for new trial. TEX . R. APP . P. 26.2(a); Olivo, 918 S.W.2d at 522. The
record does not contain any motion for new trial. The last date Clark could timely file his notice of
appeal was April 6, 2009, thirty days after the day the sentence was imposed in open court. See TEX .
R. APP . P. 4.1, 26.2(a)(1). Further, no motion for extension of time was filed in this Court within
fifteen days of the last day allowed for filing the notice of appeal.
2
In reviewing the record, we also noted that Clark filed a post-conviction application for a
court-appointed attorney.1 This Court held in Massey v. State, 759 S.W.2d 18 (Tex.
App.—Texarkana 1988, no pet.), that a request for appointment of counsel was sufficient to confer
jurisdiction. Massey is distinguishable, however, because Massey had also requested within that
motion a copy of the record, and that record contained the district clerk's written acknowledgment
that Massey orally gave notice of appeal. In the case now before us, Clark's application for court-
appointed attorney indicates no desire to appeal. An affidavit of indigence and request for
appointment of appellate counsel alone cannot serve as the notice of appeal or as a motion for
extension of time. Jarrels v. State, No. 01-01-00721-CR, 2001 WL 1301636 (Tex. App.—Houston
[1st Dist.] Oct. 25, 2001, no pet.) (mem. op., not designated for publication); Rivera v. State, 940
S.W.2d 148 (Tex. App.—San Antonio 1996, no pet.).
1
Clark was not found indigent by the trial court, and his application was denied.
3
Clark has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of
jurisdiction.2
Bailey C. Moseley
Justice
Date Submitted: May 14, 2009
Date Decided: May 15, 2009
Publish
2
Clark may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas
corpus returnable to the Texas Court of Criminal Appeals. See TEX . CODE CRIM . PROC. ANN . art.
11.07 (Vernon Supp. 2008).
4