Opinion
Nos. 05-06-00171-CR, 05-06-00172-CR, 05-06-00173-CR
Opinion issued April 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause Nos. F04-57510-X, F04-57511-X, F04-57512-X. Dismissed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
MEMORANDUM OPINION
Robert Wesley McClennon pleaded guilty to unlawful possession of a firearm by a felon, possession of cocaine in an amount of one gram or more but less than four grams, and possession of heroin in an amount of four grams or more but less than 200 grams. On November 7, 2005, pursuant to plea agreements, the trial court deferred adjudicating guilt and placed appellant on two years' community supervision in each case. Appellant's notices of appeal were due by December 7, 2005. See Tex.R.App.P. 26.2(a)(1). Appellant filed motions for new trial on December 6, 2005 and notices of appeal on December 9, 2005 and February 3, 2006. Appellant's motions for new trial were not effective to extend the time for filing his notices of appeal. See Murray v. State, 89 S.W.3d 187, 188 (Tex.App.-Dallas 2002, pet. ref'd). Therefore, because it appeared appellant's December 9, 2005 notices of appeal were untimely, we asked the parties to brief our jurisdiction over the appeals. Appellant responded that trial counsel believed the motions for new trial would extend time to file the notices of appeal and that appellant clearly evidenced his desire to appeal. On April 10, 2006, appellant filed, in this Court, a motion to extend time to file the notices of appeal. Appellant asserts that Slaton v. State, 981 S.W.2d 208 (Tex.Crim.App. 1998) (per curiam), should not be read so broadly as to preclude a court of appeals from granting an extension motion filed outside the time period specified in rule 26.3. Appellant further asserts that because "appellant would be entitled to habeas relief because counsel failed to file a timely notice of appeal (in the form of an out-of-time appeal), it would make for judicial efficiency and economy to let these matters proceed." The rules of appellate procedure provide for extensions of time to file a notice of appeal if (1) the notice of appeal is filed in the trial court within fifteen days of the date it is due, and (2) within that same fifteen-day period, an extension motion is filed in the court of appeals. See Tex.R.App.P. 26.3. It is well-settled that courts of appeals have no jurisdiction to grant an untimely motion to extend time to file a notice of appeal. See Slaton, 981 S.W.2d at 210; Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex.App.-Dallas 1998, no pet.). In Olivo, the Texas Court of Criminal Appeals held that if both the notice of appeal and the extension motion were not filed within the time period provided by former rule of appellate procedure 41(b), the appellate court lacks jurisdiction. 918 S.W.2d at 522. In Slaton, the court affirmed that the new rules of appellate procedure did not alter the Olivo holding. See Slaton, 981 S.W.2d at 210; see also Boyd, 971 S.W.2d at 605-06. Therefore, regardless of whether or not an appellant may be granted an out-of-time appeal via habeas corpus, this Court has no authority to suspend the rules of appellate procedure to grant an untimely motion to extend time to file a notice of appeal and deem an untimely notice of appeal timely. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522; Boyd, 971 S.W.2d at 606. In this case, although appellant's December 9, 2005 notice of appeal was filed within the time period provided by rule 26.3, his April 10, 2006 extension motion was not filed within that fifteen-day period. Therefore, we have no authority to take any action except to dismiss the appeals for want of jurisdiction. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522; Boyd, 971 S.W.2d at 606. Accordingly, we deny appellant's April 10, 2006 motion to extend time to file his notices of appeal. We dismiss the appeals for want of jurisdiction.