Opinion
No. 05-16-00321-CR
04-01-2016
CRAIG AARON MILLER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court Collin County, Texas
Trial Court Cause No. 296-80261-2015
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Schenck
Craig Aaron Miller was convicted by a jury of aggravated assault with a deadly weapon. The jury assessed punishment at two years' imprisonment, probated for five years, and a $2,500 fine, and the trial court suspended the sentence in open court on October 13, 2015. Appellant filed a motion for new trial on November 13, 2015 and a pro se notice of appeal on February 25, 2016. We conclude we lack jurisdiction over the appeal.
"Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id. at 523. "The standard to determine whether an appellate court has jurisdiction to hear and determine a case 'is not whether the appeal is precluded by law, but whether the appeal is authorized by law.'" Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant).
To invoke this Court's jurisdiction, an appellant must timely file a notice of appeal. See TEX. R. APP. P. 26.2(a); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). Absent a timely motion for new trial, a notice of appeal is due within thirty days of the date sentence is suspended or imposed in open court. See TEX. R. APP. P. 26.2(a)(1). With a timely motion for new trial, a notice of appeal is due within ninety days after sentence is suspended or imposed in open court. To be timely, a motion for new trial must be filed within thirty days of the date the sentence is suspended or imposed in open court. See TEX. R. APP. P. 21.4(a).
Appellant received his probated sentence in open court on October 13, 2015. Therefore, his motion for new trial was due by November 12, 2015. See id. Appellant's motion for new trial was file-stamped November 13, 2015, and the certificate of presentment states that it was "hand-delivered to the Court on 11/13/2015." Therefore, appellant's motion for new trial was untimely, making it ineffective to extend the time to file the notice of appeal.
Absent a timely motion for new trial, appellant's notice of appeal was due by November 12, 2015. See TEX. R. APP. P. 26.2(a)(1). Appellant's February 25, 2016 pro se notice of appeal is untimely, leaving us without jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210.
Appellant's motion for new trial is entitled an "Amended Motion for New Trial and Motion in Arrest of Judgment." Nothing in the documents filed with this Court reflects that appellant filed an original motion for new trial on or before November 12, 2015. Moreover, even if appellant had filed a timely motion for new trial, his February 25, 2016 notice of appeal is still untimely. The ninetieth day after October 13, 2015 was Monday, January 11, 2016. --------
We dismiss the appeal for want of jurisdiction.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160321F.U05
JUDGMENT
On Appeal from the 296th Judicial District Court, Collin County, Texas
Trial Court Cause No. 296-80261-2015.
Opinion delivered by Justice Schenck, Justices Fillmore and Stoddart participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered this 1st day of April, 2016.