Summary
dismissing appeal in which appointed appellate counsel filed Anders brief because this Court lacked jurisdiction
Summary of this case from Arteaga v. StateOpinion
01-20-00173-CR
01-06-2022
DONNELL LAVON WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas Trial Court Case No. 1479049
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
PER CURIAM
After appellant, Donnell Lavon Williams, without an agreed punishment recommendation from the State, pleaded guilty to the felony offense of aggravated robbery with a deadly weapon, the trial court deferred adjudication of appellant's guilt and placed him on community supervision for five years. The State, alleging numerous violations of the conditions of appellant's community supervision, subsequently moved to adjudicate his guilt. After a hearing on January 30, 2019, the trial court found that appellant had violated certain conditions of his community supervision, found appellant guilty, and assessed his punishment at confinement for twenty-two years. Appellant filed a pro se notice of appeal on February 6, 2020.
We dismiss the appeal for lack of jurisdiction.
After appellant filed his pro se notice of appeal, the trial court appointed him appellate counsel. Appellant's appointed appellate counsel filed a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). However, our review of the record reflects that appellant did not timely file his notice of appeal, and we therefore lack jurisdiction over his appeal.
We cannot exercise jurisdiction over an appeal without a timely filed notice of appeal. See Tex. R. App. P. 26.2(a); Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Lair v. State, 321 S.W.3d 158, 159 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). A defendant's notice of appeal is timely if it is filed within thirty days after the date the sentence is imposed or suspended in open court, or within ninety days after the date the sentence is imposed or suspended in open court if the defendant files a motion for new trial. Tex.R.App.P. 26.2(a); see Bayless v. State, 91 S.W.3d 801, 806 (Tex. Crim. App. 2002). The time for filing a notice of appeal can also be extended if, within fifteen days of the deadline for filing the notice of appeal, a defendant files his notice of appeal in the trial court and a motion for extension of time that complies with Texas Rule of Appellate Procedure 10.5(b) in the appellate court. See Tex. R. App. P. 10.5(b), 26.3; Lair, 321 S.W.3d at 159; see also Olivo, 918 S.W.2d at 522 (requiring both notice of appeal and motion for extension to be filed within fifteen days of original due date for notice of appeal).
On January 30, 2019, the trial court signed and entered its judgment. Appellant did not file a motion for new trial and did not file a motion for extension of time to file his notice of appeal, making his notice of appeal due on or before March 1, 2019. See Tex. R. App. P. 26.2(a).
On February 6, 2020, appellant filed his pro se notice of appeal from the trial court's January 30, 2019 judgment. Because appellant's notice of appeal is untimely filed, we lack jurisdiction to address the merits of his appeal and can take no other action than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); see also Fain v. State, No. 01-20-00600-CR, 2020 WL 7502494, at *1 (Tex. App.-Houston [1st Dist.] Dec. 22, 2020, pet. ref'd) (mem. op., not designated for publication) (dismissing appeal in which appointed appellate counsel filed Anders brief because defendant's notice of appeal untimely filed).
Accordingly, we dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(f). We dismiss all pending motions as moot.