Rolando Flores v. State

NO. 07-04-0065-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A APRIL 30, 2004 ______________________________ ROLANDO G. FLORES, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2003-402708; HONORABLE CECIL G. PURYEAR, JUDGE _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Rolando Flores appeals a conviction for assault. We dismiss for want of jurisdiction. BACKGROUND On January 8, 2004, sentence was imposed on appellant in the 137th District Court of Lubbock County (the trial court). He was convicted and sentenced for assault family violence with one prior offense. The trial clerk prepared and has filed a clerk's record. The record reflects that on February 11, 2004, appellant filed a general notice of appeal referencing his conviction for assault. The trial clerk filed a copy of the notice of appeal with the record. On March 18, 2004, the appellate court clerk sent counsel a letter requesting the parties to address the issue of jurisdiction. These responses were due no later than April 16, 2004; counsel has not responded. In a criminal case, appeal is perfected by timely filing a notice of appeal. Tex. R. App. P. 25.2(a). The notice of appeal must be filed within 30 days after the day sentence is imposed or after the day the trial court enters an appealable order, unless a timely motion for new trial is filed. TRAP 26.2(a). A motion for new trial may be filed by a criminal defendant no later than 30 days after the date sentence is imposed in open court. TRAP 21.4(a). The time for filing a notice of appeal may be extended for 15 days under certain circumstances. TRAP 26.3. If the time for filing a notice of appeal is to be extended, both a notice of appeal and a motion for extension of time which complies with TRAP 10.5(b) must be filed within the 15 day period. TRAP 26.3; Olivo v. State, 918 S.W.2d 519, 523-25 (Tex.Crim.App. 1996). An untimely-filed notice of appeal will not invoke the jurisdiction of the court of appeals. See State v. Riewe, 13 S.W.2d 408, 411 (Tex.Crim.App. 2000). Thus, if an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523-25. Appellant's notice of appeal was not timely filed. A motion to extend time to file the notice of appeal was not filed. Accordingly, this court does not have jurisdiction over the appeal. Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523. The appeal is dismissed for want of jurisdiction. Tex. R. App. P. 39.8, 40.2, 43.2. Phil Johnson Chief Justice Do not publish. "false" UnhideWhenUsed="false" Name="Table Grid"/> NO. 07-10-0040-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 3, 2010 ______________________________ In re CLIFFORD J. FAIRFAX, Relator ______________________________ ON PETITION FOR WRIT OF MANDAMUS _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Pending before the court is the petition for writ of mandamus filed by Clifford J. Fairfax. He asks us to order Rick Thaler, director, “Texas Department of Criminal Justice – Correctional Division” to “release [his] personal legal materials . . . so [he] . . . can continue to proceed pro se” in prosecuting his appeal. We deny the petition for the following reasons. First, the document does not comport with the requirements of Texas Rule of Appellate Procedure 52. For instance, appellant did not certify that he reviewed the petition and concluded that every factual allegation mentioned in it was supported by competent evidence included in the appendix. Tex. R. App. P. 52.3(j) (so requiring). Nor did he attach an appendix per Rule 52.3(j). Similarly neglected is compliance with subparagraphs a, b, c, d, f, and h of Rule 52.3. Second, we cannot normally issue a writ of mandamus against anyone other than a judge. Tex. Gov’t Code Ann. §22.221 (Vernon 2004). There exists an exception to that limitation, however. It encompasses instances wherein mandamus is necessary to protect our appellate jurisdiction. In re Washington, 7 S.W.3d 181, 182 (Tex. App.–Houston [1st Dist.] 1999, no pet.). But, before it can be said that we are protecting our appellate jurisdiction, there must be an appeal pending wherein the relator is a party. Id. Logic would further suggest that the act being made the subject of mandamus relief must directly interfere with the progress of that appeal. And, while Fairfax states that he has an appeal pending, he describes neither the nature of the “legal materials” allegedly taken by Thaler or how their absence impedes the prosecution of his appeal. Thus, he has failed to show that we have jurisdiction over his request for relief. Accordingly, the petition for mandamus is denied. Brian Quinn Chief Justice