COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
DAVID TERCERO, )
) No. 08-04-00072-CR
Appellant, )
) Appeal from the
v. )
) County Court at Law #1
THE STATE OF TEXAS, )
) of El Paso County, Texas
Appellee. )
) (TC# 20030C04370)
)
O P I N I O N
This is an attempted appeal from a conviction of assault, for which Appellant David Tercero received a sentence of 12 months probation, 80 hours of community service, and a probated fine of $450. The issue before this Court is whether Mr. Tercero timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.
The record reflects that the trial court entered its judgment and imposed its sentence on December 18, 2003. No motion for new trial was filed in this case. Mr. Tercero filed a notice of appeal on March 17, 2004.
A timely notice of appeal is necessary to invoke the jurisdiction of this Court. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Tex.R.App.P. 26.2(a) prescribes the time period in which notice of appeal must be filed by the defendant in order to perfect appeal in a criminal case:
(a) By the Defendant. The notice of appeal must be filed:
(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.
Therefore, a defendant=s notice of appeal is timely if filed within thirty days after the day the trial court enters an appealable order or after the day sentence is imposed. Tex.R.App.P. 26.2(a); Olivo, 918 S.W.2d at 522. Rule 26.3 allows for an exception: The appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b), reasonably explaining the need for the extension of time. Tex.R.App.P. 26.3; Tex.R.App.P. 10.5(b)(2).
The last date allowed for timely filing of the notice of appeal was January 17, 2004, thirty days after the day the trial court imposed its sentence. Tex.R.App.P. 26.2(a)(1). Mr. Tercero did not file his notice of appeal until March 17, 2004 and did not file a motion for extension of time. Therefore, Mr. Tercero failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction.
April 29, 2004
DAVID WELLINGTON CHEW, Justice
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
(Do Not Publish)