Jones v. StateJones v. State
- Reporters:
- , ,
- Before:
- Grant
OPINION
GRANT, Justice.‘Frank Jones appeals his conviction for the offense of murder. Punishment was assessed at confinement for life in the Institutional Division of the Texas Department of Criminal Justice.
Appeal is perfected in a criminal case, when no motion for new trial has been filed, when a written notice of appeal is filed within thirty days after the day sentence is imposed in open court.
The sentence was imposed in .this case on March 27,1995. No motion for new trial was filed. Accordingly, the notice of appeal was due on April 26, 1995. The notice was actually filed on May 11, 1995, and a motion for extension of time within which to file an out-of-time appeal was filed in the trial court three days earlier on May 8, 1995.
On May 15, 1995, the presiding judge of the 276th District Court of Marion County ■ signed ’ an order containing the following paragraph: “On this day came on to be considered the Motion for Permission to File Out of Time Notice of Appeal and the Court (GRANTS) (DENIES) such Motion.” Neither the word “GRANTS” nor the word “DENIES” was .struck out. There is thus no ■indication as to which of the two possible courses of action the judge intended to take. We therefore conclude that the judge took no action on the request, which is consistent with the provision of
A court of appeals is without jurisdiction to consider an appeal in which a timely notice’ of appeal has not been filed.
Rodarte v. State,
860 S.W.2d 108, 110 (Tex.Crim.App.1993). A late notice of appeal filed within the grace period provided by the above rule may be considered timely so as to invoke an appellate court’s jurisdiction only if (1) it is filed within- fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed within fifteen days of the last day allowed for filing the notice of appeal, and (3) the motion for extension of time is granted by the appellate court.
*423 We are aware that the Texas Supreme Court has held in a civil context that, where there has been a bona fide attempt to invoke appellate jurisdiction, a court of appeals should allow appellant to correct an error made in the attempt. See Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994) (filing a notice of appeal instead of a cost bond, as required, was a bona fide attempt to invoke the jurisdiction of the court); Grand Prairie Independent School District v. Southern Parts Imports, Inc. 813 S.W.2d 499, 500 (Tex.1991) (same finding). However, material errors as to the timing of a perfection of appeal do deprive a court of appeals of jurisdiction. El Paso Sharky’s Billiard Parlor, Inc. v. Amparan, 831 S.W.2d 3, 4 (Tex.App.—El Paso 1992, writ denied) (motion for extension of time to file a cost bond, as jurisdictional prerequisite to an appeal, must be timely filed in the appellate court; request for extension of time filed in trial court was insufficient).
We are also aware that, in a criminal case context, other courts have held that a notice of appeal filed within the fifteen-day grace period is sufficient to invoke jurisdiction, even if the appellant failed to file an accompanying motion for an extension of time within which to file the notice, as required by
In this case, the notice of appeal was filed on the last day of the fifteen-day grace period. The motion for extension of time to file within that period, required by
Were we writing on a clean slate, we would grant an out-of-time appeal under these facts and consider the case on the merits. We are without authority to do so, however, because we are bound by the holding of the Court of Criminal Appeals in Rodarte, 860 S.W.2d 108.
The appeal is dismissed for want of jurisdiction.