IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 3, 2004
______________________________
TOMMY HEATH, JR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 45,316-D; HONORABLE DON EMERSON, JUDGE
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Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
ON MOTION FOR REHEARINGOriginally we dismissed appellant Tommy Heath, Jr.'s appeal for want of jurisdiction for filing an untimely notice of appeal. By his motion for rehearing, appellant asserts he was granted an out-of-time appeal by the Court of Criminal Appeals. We grant the motion and withdraw our original opinion and judgment of June 23, 2004, and, in lieu thereof, issue the following opinion reinstating the appeal.
When the clerk's record was filed in this appeal on June 11, 2004, this Court had not received notice from the Court of Criminal Appeals that appellant had been granted an out-of-time appeal on April 28, 2004. Thus, the notice of appeal filed on May 24, 2004, contained in the clerk's record by which appellant expressed an intent to appeal the trial court's revocation of community supervision pronounced on October 14, 2003, appeared untimely.
By his motion for rehearing, appellant details the events leading to his application for a writ of habeas corpus filed pursuant to article 11.07 of the Texas Code of Criminal Procedure and the Court of Criminal Appeals' grant of relief. On July 23, 2004, this Court received a copy of the order from the Court of Criminal Appeals granting appellant an out-of-time appeal and instructing him to file a notice of appeal within 30 days after mandate was issued. Mandate having been issued by the Court of Criminal Appeals on April 28, 2004, appellant's notice of appeal filed on May 24, 2004, is timely. Thus, we reinstate the appeal and direct appellant to file his brief within 30 days after the date of this opinion. The State's brief will be due within 30 days after appellant's brief is filed. See Tex. R. App. P. 38.6(a) and (b).
Accordingly, appellant's motion for rehearing is granted and his appeal is reinstated effective the date of this opinion.
Per Curiam
Do not publish.
f">Memorandum Opinion
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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Wendell H. Taylor filed a notice of appeal on October 2, 2009. However, appellant did not pay the $175 filing fee required from appellants under Texas Rule of Appellate Procedure 5. On October 13, 2009, appellant filed an affidavit of indigency, which was contested by the county clerk on October 30, 2009. By hearing on November 30, 2009, the trial court determined that appellant was not indigent and able to pay the costs associated with prosecuting this appeal. By letter from this Court dated December 14, 2009, we informed appellant that “the filing fee in the amount of $175.00 has not been paid . . . . If the filing fee is not paid on or before December 28, 2009, the appeal will be dismissed for want of prosecution.” Tex. R. App. P. 42.3(c); see Holt v. F. F. Enterprises, 990 S.W.2d 756 (Tex. App.–Amarillo 1998, pet. ref’d). The deadline lapsed, and the fee was not received.
Because appellant has failed to pay the requisite filing fee as directed by the court, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(c).
Per Curiam