NO. 12-21-00136-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRIAN DANIELS, § APPEAL FROM THE 294TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Brian Daniels, acting pro se, filed a notice of appeal from a judgment in which sentence
was imposed on April 19, 2021. In a criminal case, the appellant perfects an appeal by timely
filing a sufficient notice of appeal. TEX. R. APP. P. 25.2(b). The notice of appeal must be filed
(1) within thirty 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 ninety days after the day sentence is
imposed or suspended in open court if the defendant timely files a motion for new trial. TEX. R.
APP. P. 26.2(a). The appellate court may extend the time for filing a notice of appeal if, within
fifteen days after the deadline for filing the notice, the party files in the trial court the notice of
appeal and files in the appellate court a motion complying with Rule 10.5(b). TEX. R. APP. P.
26.3.
Because sentence was imposed on April 19 and Appellant filed a timely motion for new
trial, Appellant’s notice of appeal was due on or before July 19. See TEX. R. APP. P. 26.2(a)(1).
A motion for extension of time was due on or before August 3. Appellant filed his notice of
appeal on August 17.
On August 17, the Clerk of this Court notified Appellant that the information received
failed to show the jurisdiction of the Court, i.e., there was no notice of appeal filed within the
time allowed by the rules of appellate procedure and no timely motion for an extension of time to
file the notice of appeal. See TEX. R. APP. P. 26.2(a), 26.3. We informed Appellant that the
appeal would be dismissed unless the information was amended on or before August 27 to show
this Court’s jurisdiction. Appellant did not respond to this Court’s notice.
“[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted
only when they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 330 S.W.3d
904, 915 (Tex. Crim. App. 2011). This Court is not authorized to extend the time for perfecting
an appeal except as provided by the Texas Rules of Appellate Procedure. 1 See TEX. R. APP. P.
26.2, 26.3; see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,
918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because Appellant’s notice of appeal was not
timely filed and he did not file a motion for extension with this Court within the time prescribed
by Rule 26.3, we dismiss Appellant’s appeal for want of jurisdiction. See Olivo, 918 S.W.2d at
522; see also TEX. R. APP. P. 43.2(f).
Opinion delivered September 15, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
1
Only the court of criminal appeals has jurisdiction to grant an out-of-time appeal. See Ater v. Eighth
Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); see also Kossie v. State, No. 01-16-00738-CR,
2017 WL 631842, at *1-2 (Tex. App.—Houston [1st Dist.] Feb. 16, 2017, no pet. h.) (mem. op., not designated for
publication) (dismissing for lack of jurisdiction because appellant could not pursue out of time appeal without
permission from court of criminal appeals); see TEX. CODE CRIM. PROC. ANN. art 11.07 § 3(a) (West 2005).
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 15, 2021
NO. 12-21-00136-CR
BRIAN DANIELS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 294th District Court
of Van Zandt County, Texas (Tr.Ct.No. CR16-00472)
THIS CAUSE came on to be heard on the appellate record, and the same
being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and
that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.