                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00072-CR


DAVID KITZMILLER                                                    APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1

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      Appellant David Kitzmiller’s notice of appeal was due February 20, 2014,

but was not filed until February 21, 2014. See Tex. R. App. P. 26.2(a)(2). On

April 2, 2014, we informed Kitzmiller of our concern that we may not have

jurisdiction over this appeal and requested that he advise the court whether he

filed the notice of appeal by mail. See Tex. R. App. 9.2(b). Kitzmiller responded


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       See Tex. R. App. P. 47.4.
on April 14, 2014, that he filed the notice of appeal on February 21, 2014, based

on his good-faith reliance on a website that calculated when the notice of appeal

was due and that if the court “does not believe” that he timely filed his appeal,

then he is entitled—under the state and federal constitutions—to cross-examine

“witnesses.” Kitzmiller is not so entitled. It is well established that a notice of

appeal that complies with the requirements of rule 26 is essential to vest this

court with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.

1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If an appeal

is not timely perfected, the court has no jurisdiction and can take no action other

than to dismiss the appeal. Slaton, 981 S.W.2d at 210.

      As part of his response to our jurisdiction letter, Kitzmiller filed a motion for

extension of time to file the notice of appeal, but the motion was not timely filed,

see Tex. R. App. P. 26.3, and we are unable to construe the motion as timely

filed despite Kitzmiller’s good-faith belief that he filed the notice of appeal timely.

See Olivo, 918 S.W.2d at 523 (“When a notice of appeal, but no motion for

extension of time, is filed within the fifteen-day period, the court of appeals lacks

jurisdiction to dispose of the purported appeal in any manner other than by

dismissing it for lack of jurisdiction.”). Kitzmiller alternatively asks us to construe

his response as a motion for an out-of-time appeal, but the appropriate vehicle

for that relief is by writ of habeas corpus from the court of criminal appeals. See

Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).




                                          2
Accordingly, we deny Kitzmiller’s motion and dismiss this appeal for want of

jurisdiction. See Tex. R. App. P. 43.2(f).

                                              PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 30, 2014




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