                                   NO. 07-10-00455-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                  NOVEMBER 16, 2010


                      STEPHEN SCOTT WHITAKER, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


                FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 60,131-A; HONORABLE DAN L. SCHAAP, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       On August 17, 2010, appellant, Stephen Scott Whitaker, was convicted of

committing the offense of assault on a public servant, and sentenced to incarceration in

the Texas Department of Criminal Justice, Institutional Division, for a period of eight

years. On September 17, 2010, appellant filed a motion for new trial with the trial court,

and, on November 1, 2010, appellant filed his notice of appeal. We dismiss for want of

jurisdiction.


       Unless a defendant timely files a motion for new trial, a defendant must file a

written notice of appeal with the trial court clerk within 30 days after the date sentence is
imposed. TEX. R. APP. P. 26.2(a). For a motion for new trial to be timely filed, it must be

filed no later than 30 days after the date that the trial court imposed sentence in open

court. TEX. R. APP. P. 21.4(a).


       In the present case, appellant’s motion for new trial was not filed with the trial

court until the 31st day after sentence was imposed in open court. As such, the motion

for new trial was not timely filed and, therefore, did not extend the time for appellant to

file notice of appeal. See TEX. R. APP. P. 26.2(a). Consequently, appellant’s notice of

appeal was due to be filed by September 16, 2010. However, appellant’s notice of

appeal was not filed until November 1, 2010, which was insufficient to invoke this

Court’s jurisdiction over the appeal.     Because this Court is without jurisdiction to

address the merits of this appeal, we have no authority to take any action other than to

dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).


       Accordingly, the purported appeal is dismissed for want of jurisdiction. 1




                                                        Mackey K. Hancock
                                                             Justice

Do not publish.




       1
        Appellant may have recourse by filing a post-conviction writ of habeas corpus
returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time
appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2010).

                                             2
