                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-410-CR


CALVIN R. KUYKENDALL                                               APPELLANT

                                              V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant Calvin R. Kuykendall attempts to appeal his convictions for

possession with intent to deliver a controlled substance of four grams or more

and for illegal investment. The jury found Appellant guilty, and the trial court

sentenced him to twenty-five years’ confinement. We dismiss the appeal for

want of jurisdiction.



      1
          … See T EX. R. A PP. P. 47.4.
      Pursuant to rule 26.2 of the rules of appellate procedure, a notice of

appeal must be filed within thirty days after the day sentence is imposed, or

within ninety days after the day sentence is imposed if the defendant files a

timely motion for new trial. T EX. R. A PP. P. 26.2(a)(1), (2). Appellant did not

file a motion for new trial; thus, his notice of appeal was due October 17,

2007, but was not filed until October 24, 2007. Appellant did not file a motion

to extend the time for filing the notice of appeal. See T EX. R. A PP. P. 26.3.

      On January 14, 2008, we notified Appellant of the apparent untimeliness

of his appeal and informed him that we would dismiss the appeal unless he filed

a response by January 24, 2008, showing grounds for continuing the appeal.

See T EX. R. A PP. P. 44.3. We did not receive a response.

      A first supplemental clerk’s record was subsequently filed on February 6,

2008. It contained a February 5, 2008 order appointing counsel for Appellant

on appeal. We therefore notified Appellant’s appointed counsel on February 6,

2008, of our concern that we lacked jurisdiction over the appeal. Appellant’s

counsel responded and explained that she had not been appointed to represent

Appellant until February 5, 2008, because of an alleged trial court clerk error.

Although Appellant did not file a motion for extension of time along with his

late notice of appeal, his counsel requested that we allow the appeal to proceed

pursuant to the procedure outlined in rule 26.3 and in the interest of justice;

                                        2
counsel essentially asks that a motion for extension of time be implied as in civil

appeals under Verburgt v. Donner, 959 S.W.2d 615, 617 (Tex. 1997).

      A notice of appeal that complies with the requirements of rule 26 is

essential to vest this court with jurisdiction. T EX. R. A PP. P. 26; see Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). The court of criminal

appeals has expressly held that, without a timely filed notice of appeal or

motion for extension of time, we cannot exercise jurisdiction over an appeal.

See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also

Slaton, 981 S.W.2d at 210. The court has declined to adopt the liberal “civil

appellate approach” that permits an appellant to invoke the jurisdiction of an

appellate court by merely filing a notice of appeal within fifteen days of its due

date, without the necessity of a timely filed motion for extension. Olivo, 918

S.W.2d at 522–25; cf. Verburgt, 959 S.W.2d at 615.




                                        3
      Appellant never filed a motion to extend the time to file the notice of

appeal.   Because Appellant’s notice of appeal was untimely, we have no

jurisdiction over this appeal.   See Olivo, 918 S.W.2d at 522–23; see also

Slaton, 981 S.W.2d at 209–10.2 Accordingly, we dismiss this appeal for want

of jurisdiction.




                                               PER CURIAM

PANEL D: HOLMAN, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 20, 2008




      2
      … Unlike the court of criminal appeals, we cannot grant an out-of-time
appeal. See T EX. C ODE C RIM. P ROC. A NN. art. 11.07 (Vernon Supp. 2007).

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