NO. 07-11-00095-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 20, 2011
ALTON RAY BURNS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 60,552-D; HONORABLE DON R. EMERSON, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Alton Ray Burns attempts to appeal his conviction for possession with
intent to deliver a controlled substance, enhanced, and sentence of twenty-five years in
prison. Sentence was imposed on November 29, 2010, and appellant filed a notice of
appeal on February 18, 2011. The notice included a request for additional time to
perfect the appeal. Appellant did not file a motion for new trial.
By letter, we notified appellant his notice of appeal appeared untimely thus
depriving us of appellate jurisdiction. We afforded him an opportunity to file documents
or matters he considered necessary for determination of our jurisdiction. Appellant filed
a one-page response essentially stating on March 28, 2011, he made application for a
writ of habeas corpus under article 11.07 of the Code of Criminal Procedure. Tex. Code
Crim. Proc. Ann. art. 11.07 (West Supp. 2010).
Our appellate jurisdiction is triggered through a timely notice of appeal. Olivo v.
State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Rule of Appellate Procedure 26.2(a)
requires a notice of appeal be filed within 30 days after the day sentence is imposed in
open court or within 90 days after imposition of the sentence if a timely motion for new
trial is filed. Tex. R. App. P. 26.2(a)(1), (2).
The rules of appellate procedure provide for an extension of time to file the notice
of appeal if “such notice is filed within fifteen days after the last day allowed and within
the same period a motion is filed in the court of appeals reasonably explaining the need
for such extension.” Tex. R. App. P. 26.3. Both the notice of appeal and the extension
motion must be filed within the time provided by the rules. See Slaton v. State, 981
S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 522.
Because appellant did not file a motion for new trial, his notice of appeal was due
within thirty days after the date sentence was imposed in open court. This deadline
could have been extended to forty-five days of the date sentence was imposed if within
that period the notice of appeal and a motion for extension of time complying with the
requirements of Rule of Appellate Procedure 26.3 were filed. Appellant’s notice of
appeal and request for extension of time were filed more than sixty days after imposition
of sentence and were therefore untimely. Our appellate jurisdiction has not been
invoked.
2
Consequently, we dismiss the appeal for want of jurisdiction.1
James T. Campbell
Justice
Do not publish.
1
We do not reach the second issue called to appellant’s attention by our letter.
The trial court’s certification of appellant’s right to appeal states this “is a plea-bargain
case and the defendant has no right to appeal [and] the defendant has waived the right
of appeal.” Tex. R. App. P. 25.2(a)(2),(d).
3