Opinion
No. 05-17-01326-CR
12-28-2017
CLAUDIO CASTRO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas
Trial Court Cause No. F17-75758-H
MEMORANDUM OPINION
Before Justices Lang-Miers, Fillmore, and Stoddart
Opinion by Justice Fillmore
Claudio Castro appeals the trial court's judgment adjudicating his guilt for failure to register as a sex offender. We dismiss the appeal for want of jurisdiction.
On September 22, 2017, the trial court entered its judgment adjudicating appellant's guilt. Appellant did not file a motion for new trial. On November 6, 2017, appellant filed an untimely notice of appeal. See TEX. R. APP. P. 26.2(a) (establishing time deadlines for filing notices of appeal). In response to a directive from the Clerk soliciting a letter brief regarding the Court's jurisdiction to hear the appeal, appellant has filed a December 19, 2017 motion to supplement the record on appeal in which he acknowledges that his notice of appeal was untimely, but alleged he had filed, in the trial court, a timely motion to extend the time to file the notice of appeal. Appellant attached a copy of the motion to extend, which bears the trial court's signature on a line beneath the certificate of service and a date of "12-19-17" directly beneath the trial court's signature. Appellant requests that we order the trial court clerk to supplement the record with the motion filed in the trial court and consider it as timely for our consideration.
In a criminal case where no motion for new trial has been filed, an appellant invokes the jurisdiction of this Court by filing a written notice of appeal within thirty days after the date sentence was imposed. See TEX. R. APP. P. 26.2(a). The appellate court may grant an extension to file a notice of appeal if, within fifteen days after the due date for the notice of appeal, the prospective appellant files in the trial court a written notice of appeal and files in the appellate court a motion to extend the time to file the notice of appeal. See TEX. R. APP. P. 10.5(b)(2), 26.3. Absent a timely notice of appeal or a timely request for extension, this Court does not have jurisdiction over the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
The trial court does not have the power to grant a motion to extend the time to file a notice of appeal. See TEX. R. APP. P. 26.3; Jones v. State, 900 S.W.2d 421, 422 (Tex. App.—Texarkana 1995, no pet.) (interpreting prior version of rule). See also Richardson v. State, No. 05-02-01592-CR, 2002 WL 31371944, at *1 (Tex. App.—Dallas Oct. 22, 2002, no pet.) (per curiam) (not designated for publication) (dismissing appeal where trial court granted extension of time to file untimely notice of appeal). To the extent that the trial court intended to grant appellant's motion, its action was a nullity. See Jones, 900 S.W.2d at 422; Richardson, 2002 WL 31371944, at *1.
By filing the motion to extend the time to file a notice of appeal in the trial court rather than this Court, appellant failed to comply with the requirement to obtain an extension of time to file his notice of appeal. See TEX. R. APP. P. 26.3(b); Jones, 900 S.W.2d at 423. See also Richardson, 2002 WL 31371944, at *1; Bain v. State, No. 13-07-180-CR, 2007 WL 1519315, at *1 (Tex. App.—Corpus Christi-Edinburg May 24, 2007, no pet.) (per curiam) (not designated for publication) (dismissing appeal in which motion for extension of time to file notice of appeal was filed in trial court rather than in court of appeals). Because appellant did not file a timely motion to extend with this Court to accompany his untimely notice of appeal, we conclude we lack jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 526.
We deny appellant's motion to supplement the record on appeal, and we dismiss the appeal for want of jurisdiction.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not publish
TEX. R. APP. P. 47 171326F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 1, Dallas County, Texas
Trial Court Cause No. F17-75758-H.
Opinion delivered by Justice Fillmore. Justices Lang-Miers and Stoddart participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered this 28th day of December, 2017.