Opinion
NO. 12-20-00259-CR
12-16-2020
JODY FORD MCCREARY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS MEMORANDUM OPINION
Appellant Jody Ford McCreary, acting pro se, filed a notice of appeal in trial court cause number 007-1110-10, in which he was convicted in 2011 of tampering with physical evidence, a felony. Under the rules of appellate procedure, the notice of appeal must be filed within thirty days after the sentence is imposed or within ninety days after sentence is imposed if the defendant timely files a motion for new trial. See TEX. R. APP. P. 26.2(a). Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. TEX. R. APP. P. 26.3. In this case, Appellant filed his notice of appeal on November 23, 2020, long after the time for filing a notice of appeal under Rule 26.2(a) or for seeking a motion to extend under Rule 26.3.
Appellant previously attempted to appeal his 2011 conviction and sentence. This Court dismissed the appeal for want of jurisdiction. See McCreary v . State , No. 12-20-00029-CR, 2020 WL 827587 (Tex. App.—Tyler Feb. 19, 2020, no pet.) (mem. op.; not designated for publication) (per curiam); see also Ex parte McCreary , No. 12-20-00144-CR, 2020 WL 5249561 (Tex. App.—Tyler Sept. 2, 2020) (mem. op.; not designated for publication) (per curiam) (dismissing for want of jurisdiction Appellant's appeal from denial of post-judgment habeas application). Appellant also filed numerous proceedings with the court of criminal appeals regarding trial court cause number 007-1110-10, the most recent of which the court of criminal appeals took no action on because of a previous order citing Appellant for abuse of the writ of habeas corpus. See Ex parte McCreary , WR-59,803-46 (Tex. Crim. App. Dec. 2, 2020).
On November 23, 2020, 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, 26.3. The notice further informed Appellant that the appeal would be dismissed unless the information was amended on or before December 3 to show this Court's jurisdiction. This deadline passed without a response from Appellant.
"[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. 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). Accordingly, we dismiss Appellant's appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). Opinion delivered December 16, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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).
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1110-10)
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.