IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 10, 2002
______________________________
JOHN HENRY GONZALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 41,636-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant John Henry Gonzales appeals a conviction for Indecency With a Child - Sexual Contact. We dismiss for want of jurisdiction.
BACKGROUND
Appellant was indicted by a Potter County Grand Jury for Indecency With a Child - Sexual Contact. On April 3, 2000, he pled guilty pursuant to a plea bargain. The trial court honored the plea bargain, deferred adjudication of appellant and placed him on community supervision for a period of three years. Pursuant to the State's motion to adjudicate, the trial court held a hearing on February 15, 2002, adjudicated appellant guilty and sentenced him to confinement in the Institutional Division of the Department of Justice for 12 years. No motion for new trial or other post-judgment motions were filed.
On May 7, 2002, the trial clerk filed a letter from appellant in which he asserted that he wanted to appeal his conviction and have a trial by jury. The letter was in an envelope postmarked May 3, 2002. By letter dated June 13, 2002, the appellate clerk directed appellant to file by July 2, 2002, a letter brief or other explanation of why the appeal should not be dismissed for want of jurisdiction. The clerk's letter also notified appellant that on or after July 3, 2002, this court would consider whether its jurisdiction has been invoked over the appeal. Appellant has not filed a response to the clerk's letter. Nor has he filed a brief or explanation of why the appeal should not be dismissed for want of jurisdiction. LAW
In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R. App. P. 25.2(a). (1) The notice of appeal must be filed within 30 days after the day sentence is imposed or after the day the trial court enters an appealable order, unless a timely motion for new trial is filed. TRAP 26.2(a). A motion for new trial may be filed by a criminal defendant no later than 30 days after the date sentence is imposed in open court. TRAP 21.4(a). The time for filing a notice of appeal may be extended for 15 days under certain circumstances. TRAP 26.3. If the time for filing a notice of appeal is to be extended, both a notice of appeal and a motion for extension of time which complies with TRAP 10.5(b) must be filed within the 15 day period. TRAP 26.3; Olivo v. State, 918 S.W.2d 519, 523-25 (Tex.Crim.App. 1996).
An untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See State v. Riewe, 13 S.W.2d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523-25.
ANALYSIS AND CONCLUSION
Appellant's notice of appeal was not timely filed. A motion to extend time to file the notice of appeal was not filed. Accordingly, this court does not have jurisdiction over the appeal. Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.
The appeal is dismissed for want of jurisdiction. TRAP 39.8, 40.2, 43.2.
Phil Johnson
Justice
Do not publish.
1. Further references to a Rule of Appellate Procedure will be by reference to "TRAP __."
An appeal from an order denying a Rule 20.2 motion for a record at State expense is ancillary to the appeal challenging a judgment of conviction and punishment. See In the Matter of the Marriage of Gary, No. 07-01-0466-CV, 2002 Tex. App. Lexis 5749, at *7 (Tex.App.–Amarillo August 7, 2002, order) (civil case proceeding under Rule 20.1). A separate notice of appeal challenging an order denying an indigence determination in the case is not necessary. Id.; Ramirez v. State, Nos. 04-00-00031-CR, 04-00-00037-CR, and 04-00-00199-CR, 2000 WL 794157, at *1 (Tex.App.–San Antonio June 21, 2000, order) (not designated for publication) (stating separate notice of appeal is not required to obtain review of a trial court order denying a record at State expense). Accordingly, on our own initiative, we will dismiss appellate cause number 07-09-0385-CR as moot, and address appellant’s indigence in number 07-09-0331-CR.
Cause number 07-09-0331-CR is abated with the following exception and
instructions. Pursuant to Rule 34.5(c)(1), the clerk of the trial court is directed to prepare
a record containing the motion and affidavit filed by appellant requesting a record at State
expense, the order of the trial court ruling on the motion, any findings of fact and
conclusions of law pertaining to the motion or the alleged indigence of appellant, and any
other documents pertaining to the alleged indigence of appellant. Pursuant to Rule
34.6(d), the court reporter is directed to prepare a reporter’s record of all hearings
addressing appellant’s motion for a record at State expense or claimed indigence. See In
re Arroyo, 988 S.W.2d 737, 739 (Tex. 1998) (orig. proceeding) (appellate court may on its
own initiative apply Rules 34.5(c)(1) and 34.6(d) to obtain preparation by clerk and court
reporter of portions of record necessary to review order denying indigence status); Tex. R.
App. P. 34.5, 34.6.
The clerk’s record and reporter’s record prepared according to this order shall be
filed with the clerk of this Court no later than January 8, 2010. Within thirty days from the
date the clerk’s and reporter’s records we have ordered both are filed, appellant shall file
a brief with the clerk of this Court addressing his contention the trial court erred in denying
his request for a record at State expense. The State’s brief in response to appellant’s brief
shall be due thirty days from the date appellant’s brief is filed. The abatement shall
otherwise remain until further order of this Court.
The appeal pending as number 07-09-0385-CR is dismissed. The Court’s previous instruction to appellant to file a docketing statement in 07-09-0385-CR is vacated.
It is so ordered.
Per Curiam
Publish.