IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MARCH 24, 2005
______________________________
TAUNTON CORPORATION D/B/A MIDNIGHT RODEO, APPELLANT
V.
MARY PHILLIPS, INDIVIDUALLY AND AS NEXT FRIEND OF TYLER PHILLIPS, A MINOR, APPELLEE _________________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-522,239; HONORABLE MACKEY K. HANCOCK, JUDGE _______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONTaunton Corporation, d/b/a Midnight Rodeo, appellant, appeals the Order denying appellant's Motion to Set Aside Default Judgment/Motion for New Trial signed on July 2, 2004, and the Default Judgment signed on March 3, 2004. We will dismiss the appeal.
We are obligated to determine, sua sponte, issues affecting our jurisdiction over an appeal. New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990). Subject to limited exceptions not applicable here, our appellate jurisdiction is limited to review of final orders and judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). To be final and appealable, a judgment must dispose of all issues and parties in the case. Id. The record shows appellee filed suit against appellant and Clear Channel Broadcasting, Inc. d/b/a KQRB 99.5 The Bear. The judgment appellant seeks to challenge in this appeal recites it "is final, disposes of all claims against Defendant, Tauton [sic], Corporation, d/b/a/ Midnight Rodeo and is not appealable." The judgment made no disposition of appellee's claims against Clear Channel Broadcasting and the record does not contain an order severing the claims against either defendant. The order denying appellant's Motion to Set Aside Default Judgment/Motion for New Trial makes no disposition of the claims against Clear Channel Broadcasting. This record fails to show either of the trial court actions appellant seeks to challenge in this appeal is final and appealable.
Additionally, appellant's brief was due no later than February 25, 2005. By letter dated March 3, 2005, we notified appellant that the due date for the brief had passed, that the brief had not been filed and no motion for extension of time to file had been received by the court. Citing Texas Rule of Appellate Procedure 38.8, the letter also notified appellant that the appeal would be subject to dismissal unless a response reasonably explaining its failure to file a brief, together with a showing that the appellee has not been significantly injured by the failure, was submitted by March 14, 2005. Appellant has not filed such a response, nor has it since submitted a brief or a motion for extension of time.
Accordingly, we dismiss the appeal for want of jurisdiction and want of prosecution. Tex. R. App. P. 38.8(a)(1); 42.3(a),(b).
James T. Campbell
Justice
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NO. 07-10-0513-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 28, 2011
______________________________
AUNG AUNG,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;
NO. 122,374; HON. W.F. CORKY ROBERTS, PRESIDING
_______________________________
Order of Dismissal
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Aung Aung, appellant, attempts to appeal his conviction for two counts of evading arrest and making a terroristic threat. The court imposed sentence on July 29, 2010, and a motion for new trial was timely filed. His notice of appeal was filed on December 17, 2010. We dismiss for want of jurisdiction.
To be timely, a notice of appeal must be filed within thirty days after the sentence is imposed or suspended in open court or within ninety days after that date if a motion for new trial is filed. Tex. R. App. P. 26.2(a). Therefore, the notice of appeal was due on October 27, 2010.
A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If it is untimely, we can take no action other than to dismiss the proceeding. Id. at 523. Appellant's notice being untimely filed, we have no jurisdiction over the matter and dismiss the appeal.
Accordingly, appellant=s appeal is dismissed.[1]
Brian Quinn
Chief Justice
Do not publish.
[1]The appropriate vehicle for seeking an out‑of‑time appeal from a final felony conviction is by writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005).