







COURT OF APPEALS








COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
 



 
RONALD LEE
  SMOCK,
 
                            Appellant,
 
v.
 
THE STATE OF
  TEXAS,
 
                            Appellee.


 
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                No. 08-02-00440-CR
 
Appeal from the
 
142nd District Court
 
of Midland County, Texas 
 
(TC# CRA-22,981) 
 



OPINION ON DISMISSAL FOR WANT OF JURISDICTION
 
In this case, Ronald Lee Smock
attempts to appeal his revocation of community supervision assessed for felony
driving while intoxicated in 1997.  The
judge reinstated appellant=s punishment of 10 years= imprisonment on August 23, 2002,
after finding that the defendant violated the terms and conditions of his
community supervision.  The issue before
us is whether appellant timely filed his notice of appeal.  We conclude that he did not and dismiss the
attempted appeal for want of jurisdiction.
The trial court imposed sentence in
open court on August 23, 2002.  No motion
for new trial was filed.  Appellant filed
his notice of appeal on September 24, 2002.




A timely notice of appeal is
necessary to invoke this Court=s jurisdiction.  Olivo
v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).  Tex.
R. App. P. 26.2(a) prescribes the time period in which notice of appeal
must be filed by the defendant in order to perfect appeal in a criminal case:
(a) By
the Defendant.  The notice of appeal
must be filed:
 
(1)
within 30 days after the day sentence is imposed or suspended in open court, or
after the day the trial court enters an appealable order; or
 
(2)
within 90 days after the day sentence is imposed or suspended in open court if
the defendant timely files a motion for new trial.
 
Tex. R. App. P. 26.2(a).  Therefore, a defendant=s notice of appeal is timely if filed
within thirty days after the day sentence is imposed or suspended in open
court.  See Tex. R. App. P. 26.2(a); Olivo,
918 S.W.2d at 522.  Under Rule 26.3, a
late notice of appeal may be considered timely so as to invoke a court of
appeals= jurisdiction if (1) it is filed
within fifteen days of the last day allowed for filing, (2) a motion for
extension of time is filed in the court of appeals within fifteen days of the
last day allowed for filing the notice of appeal, and (3) the court of appeals
grants the motion for extension of time. 
Olivo, 918 S.W.2d at 522.




When a defendant appeals in a
criminal case, the time to file notice of appeal runs from the date sentence is
imposed or suspended in open court, not from the date sentence is signed and
entered by the trial court.  See Rodarte
v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993); George v. State,
883 S.W.2d 250, 251 (Tex. App.--El Paso 1994, no pet.); Reyes v. State,
883 S.W.2d 291, 292 (Tex. App.--El Paso 1994, no pet.).  September 22, 2002 was thirty days after the
day sentence was imposed in open court; however, as that was a Sunday, notice
of appeal would have been timely if filed on the following Monday, September
23, 2002.  See Tex. R. App. P. 26.2(a)(1); Tex. R. App. P. 4.1(a).  Smock did not file until the next day,
Tuesday, September 24.  Moreover, he
failed to file a motion for extension of time pursuant to Rule 26.3.
Conclusion
Because appellant did not file his
notice of appeal until September 24, 2002, and he failed to file a motion for
extension of time, he failed to perfect this appeal.   Accordingly, we dismiss the appeal for want
of jurisdiction.
 
SUSAN
LARSEN, Justice
November 7, 2002
 
Before Panel No. 1
Larsen, McClure, and Chew,
JJ.
 
(Do Not Publish)
 

