NO. 12-06-00021-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES EARL SMITH, ' APPEAL FROM THE 241ST
APPELLANT
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE ' SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for want of jurisdiction. Appellant was convicted of unlawful possession of firearm by a felon, and sentence was imposed on November 5, 2005. Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court unless a motion for new trial is timely filed. Tex. R. App. P. 26.2(a)(1). Where a timely motion for new trial has been filed, notice of appeal shall be filed within ninety days after sentence is imposed or suspended in open court. Tex. R. App. P. 26.2(a)(2). The trial court clerk=s record does not show that Appellant filed a motion for new trial. Therefore, his notice of appeal was due to have been filed on or before December 5, 2005. Appellant=s notice of appeal was not filed until January 20, 2006. Moreover, Appellant did not file a timely motion for extension of time to file his notice of appeal as authorized by Texas Rule of Appellate Procedure 26.3.
On January 24, 2006, this Court notified Appellant pursuant to Texas Rules of Appellate Procedure 26.2 and 37.2 that the clerk=s record did not show the jurisdiction of this Court, and it gave him until February 3, 2006 to correct the defect. On February 10, 2006, Appellant=s counsel faxed the Clerk of this Court a copy of a motion for new trial bearing trial court cause number 241-0308-05. The Clerk was informed that the correct trial court cause number for the motion for new trial is 241-0887-05, which is the trial court cause number in this appeal. However, the trial court clerk=s record filed in this appeal does not include this motion for new trial. Consequently, we are unable to conclude that this Court has jurisdiction of the appeal.
Because this Court has no authority to allow the late filing of a notice of appeal except as provided by Rule 26.3, the appeal must be dismissed. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Accordingly, the appeal is dismissed for want of jurisdiction.
Opinion delivered February 15, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)
[COMMENT1]
[COMMENT1]J.11 DISMISSED FOR WANT OF JURISDICTION - Vanilla