Kevin Lewis v. State

IN THE

TENTH COURT OF APPEALS

No. 10-98-284-CR

     KEVIN LEWIS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 278th District Court

Leon County, Texas

Trial Court # 8099-B

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Kevin Lewis was adjudicated guilty of burglary on July 17, 1998. He filed a pro se notice of appeal on August 18.

      A timely notice of appeal is necessary to invoke a court of appeal's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). To be timely, a notice of appeal must be filed within thirty days after the sentence is imposed, or within ninety days if a timely motion for new trial is filed. See Tex. R. App. P. 26.2. There is no motion for new trial in the clerk’s record; consequently, Lewis’ notice of appeal was due on or before August 16, 1998.

      Provision is made in the appellate rules for the untimely filing of a notice of appeal. Rule 26.3 allows the appellate court to extend the time for an appellant to file a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party files the notice of appeal and a motion requesting an extension of time to file the notice. Tex. R. App. P. 26.3.       Without a timely filed notice of appeal, or a timely filed motion to extend the time to file a notice of appeal, the appellate court has no jurisdiction over an appeal. Olivo, 918 S.W.2d at 522-23. Lewis’ notice of appeal was due on August 16, 1998, but was filed on August 18. He failed to file a motion to extend time. Thus, his notice of appeal is untimely. This court has no jurisdiction over his appeal, and it must be dismissed.

      The cause is dismissed for want of jurisdiction.

                                                                                     PER CURIAM

 

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Dismissed

Opinion delivered and filed March 3, 1999

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in-bottom:0in; margin-left:.75in;margin-bottom:.0001pt;text-align:justify;text-indent:-.25in'>10.  Volume 41 of 48 – Guilt/Innocence - of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;

 

11.  Volume 42 of 48 – Guilt/Innocence - of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;

 

12.  Volume 43 of 48 – Punishment - of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994;

 

13.  Volume 44 of 48 – Punishment - of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994; and

 

14.  Volume 45 of 48 – Motion for New Trial - of the Statement of Facts from the jury trial in Cause No. 28,165 from September 19-November 1, 1994.

 

            In a July 30 letter, we ordered the parties to advise us by August 6 why this supplemental clerk’s record should be filed in this cause.  The State responded:

            The State requested the supplement of the record. . . .  It is believed by the State that the trial record is important to the Court of Appeals in analyzing the applicant’s due process and due course of law complaints. . . .

 

            In other words, the State believes the trial record is important for the Court to resolve the applicant’s due process claim.

 

Graves responded and requested that we file the supplemental clerk’s record, asserting:

            The Court should consider the supplemental clerk’s record because it shows that at Graves’ first trial the State intentionally used perjured testimony to avoid a likely acquittal, and that Double Jeopardy has attached.

 

Graves then quotes from the supplemental clerk’s record testimony that supports his assertion.  The State’s Brief, Graves’ Reply Brief, and Graves’ Surreply Brief all cite to and quote from the supplemental clerk’s record.  Also, in his petition for writ of habeas corpus, Graves requested the trial court to take judicial notice of all the proceedings in the cause and in both the state and federal writ proceedings.

            Based on the foregoing, we order the Clerk of this Court to file the proposed supplemental clerk’s record.  See Tex. R. App. P. 34.5(c)(1, 3).

 

                                                                                                PER CURIAM

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

            (Chief Justice Gray dissenting)

Order issued and filed October 15, 2008

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