Armando Brooks v. the State of Texas
02-21-00110-CR
| Tex. App. | Nov 10, 2021Background
- Appellant Armando Brooks pleaded guilty to second-degree felony possession of a controlled substance and was sentenced to 12 years' confinement on June 25, 2021.
- No motion for new trial was filed; under Texas Rule of Appellate Procedure 26.2(a) his notice of appeal was therefore due July 26, 2021.
- Brooks’s court-appointed appellate counsel filed a notice of appeal on August 6, 2021 — 11 days late and within the 15-day extension window but without a motion to extend time.
- The court of appeals notified counsel of a jurisdictional defect and gave ten days to show grounds to continue the appeal; no response was filed.
- Because a timely notice of appeal is jurisdictional and no motion to extend was filed, the court dismissed the appeal for want of jurisdiction.
- The opinion notes Brooks may seek relief via an application for writ of habeas corpus to the Court of Criminal Appeals for an out-of-time appeal (Tex. Code Crim. Proc. art. 11.07).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the notice of appeal was timely and whether the court has jurisdiction | Notice filed within 15-day extension period (filed Aug 6) — may justify continued appeal | Notice was untimely (due July 26); no motion to extend; lack of jurisdiction | Appeal dismissed for want of jurisdiction |
| Whether a motion to extend time is implied when a criminal notice is filed within the 15-day extension | Counsel may rely on filing within extension to preserve appeal without a separate motion | In criminal cases, no implied motion to extend time; an express motion is required | No implied motion; absence of motion bars jurisdiction |
Key Cases Cited
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (timely notice of appeal is jurisdictional; untimely notice requires dismissal)
- Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012) (untimely notice of appeal mandates dismissal for lack of jurisdiction)
- Lair v. State, 321 S.W.3d 158 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (criminal appeals do not imply a motion to extend time when notice is filed within the 15-day extension)