Opinion filed April 8, 2021
In The
Eleventh Court of Appeals
___________
No. 11-21-00024-CR
___________
JONATHAN MATTHEW MCKEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR53054
MEMORAND UM OPI NI ON
Jonathan Matthew McKee, Appellant, originally pleaded guilty to the offense
of tampering with physical evidence and was convicted of that offense. Appellant’s
punishment was assessed at confinement for ten years and a fine of $750, but the
trial court suspended the imposition of the confinement portion of the sentence and
placed Appellant on community supervision for three years. Approximately one
year later, the trial court revoked Appellant’s community supervision and imposed a
sentence of confinement for eight years in the Institutional Division of the Texas
Department of Criminal Justice plus the unpaid balance of the fine. Appellant filed
a pro se notice of appeal from the judgment revoking his community supervision.
Appellate counsel was subsequently appointed to represent Appellant. Because the
notice of appeal was not filed timely, we dismiss the appeal for want of jurisdiction.
Pursuant to the Texas Rules of Appellate Procedure, a notice of appeal is due
to be filed either (1) within thirty days after the date that sentence is imposed or
suspended in open court or (2) if the defendant timely files a motion for new trial,
within ninety days after the date that sentence is imposed or suspended in open court.
TEX. R. APP. P. 26.2(a). A notice of appeal must be in writing and filed with the clerk
of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this appeal
indicate that Appellant’s sentence was imposed on August 17, 2020, that no motion
for new trial was filed, and that Appellant filed his notice of appeal on February 2,
2021, 169 days after his sentence was imposed. The notice of appeal was therefore
untimely.
Absent a timely filed notice of appeal or the granting of a timely motion for
extension of time, we do not have jurisdiction to entertain this appeal. Slaton v.
State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519,
522–23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim.
App. 1993).
After the appeal was filed in this court, we notified Appellant and, later,
Appellant’s counsel by letter that the notice of appeal appeared to be untimely and
that the appeal may be dismissed for want of jurisdiction. We requested a response
showing grounds to continue this appeal. Appellant filed a pro se response and a
“Motion For Continuance” in which he claims that the evidence is insufficient to
support his conviction. This court is not authorized to grant a “continuance” or a
request for an out-of-time appeal. See Slaton, 981 S.W.2d at 210.
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Appellant’s counsel also filed a response to this court’s letter. Counsel cited
Basaldua and Article 11.072 of the Texas Code of Criminal Procedure as bases on
which this appeal may continue. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West
2015) (providing for procedure to file an application for writ of habeas corpus in a
felony or misdemeanor case in which the applicant seeks relief from an order
imposing community supervision); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim.
App. 1977) (involving question of jurisdiction over appeal and, alternatively,
application for habeas corpus from an order modifying the conditions of probation).
Neither Basaldua nor Article 11.072 involves the jurisdiction of an appellate court
to consider an appeal in which the notice of appeal was untimely filed, and neither
is applicable to this appeal.
Appellant has not provided this court with any grounds upon which this appeal
may be continued. Because the notice of appeal was not timely filed, we have no
jurisdiction over this appeal and must dismiss it. See Slaton, 981 S.W.2d at 210.
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM
April 8, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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