                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                    NO. 2-07-442-CR


MICHAEL Q. MAYS                                                   APPELLANT

                                           V.

THE STATE OF TEXAS                                                     STATE

                                       ------------

       FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

                                       ------------

        Michael Q. Mays attempts to appeal his conviction for possession of a

controlled substance, cocaine, in the amount of less than one gram. We have

considered his “Motion to Extend Time to File Notice of Appeal.” We deny

appellant’s motion and dismiss the appeal for want of jurisdiction.

        Pursuant to rule 26.2 of the rules of appellate procedure, a notice of

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

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


  1
      See T EX. R. A PP. P. 47.4.
timely motion for new trial.2 A jury found appellant guilty, and on August 29,

2007, the trial court sentenced him to thirteen months in state jail. Appellant

filed a motion for new trial; thus, his notice of appeal was due on November

27, 2007. Appellant, however, filed his notice of appeal on November 30,

2007.

         Further, a timely motion to extend time for filing a notice of appeal would

have been due within fifteen days of November 27, 2007, or on December 12,

2007.3 Appellant’s motion to extend time to file notice of appeal was not filed

until January 9, 2008.

         In appellant’s motion, counsel alleges that the late filing of the notice of

appeal was unintentional, was not appellant’s fault, and was caused by

miscounting the days from the imposition of the sentence. Counsel further

alleges that he did not discover that the notice of appeal was untimely until our

December 31, 2007 letter informing him that we were concerned that we

lacked jurisdiction.       He requests that we suspend the rules of appellate

procedure pursuant to rules 2 and 26.3 to allow the late filing of appellant’s

notice of appeal.




  2
       T EX. R. A PP. P. 26.2(a)(1)–(2).
   3
       T EX. R. A PP. P. 26.3.

                                           2
         A notice of appeal that complies with the requirements of rule 26 is

essential to vest this court with jurisdiction. 4    While we sympathize with

counsel’s miscalculation of the appellate timetable, we may not suspend the

rules of appellate procedure pursuant to rule 2 to extend the time for perfecting

an appeal.5 Without a timely filed notice of appeal or a timely filed motion for

extension of time, we lack jurisdiction over the appeal and may take no action

other than to dismiss the appeal.6

         Accordingly, we deny appellant’s “Motion to Extend Time to File Notice

of Appeal” and dismiss the appeal for want of jurisdiction.7


                                                    PER CURIAM

PANEL D: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

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

DELIVERED: March 27, 2008




   4
       Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
   5
       Id.; Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996).
   6
       Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 522–23.
   7
       See T EX. R. A PP. P. 26.2(a), 43.2(f).

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