                                   NO. 07-09-00266-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     AUGUST 6, 2010


                           TAYLOR K. DURANT, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


           FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

           NO. 2008-452,073; HONORABLE LARRY B. "RUSTY" LADD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION

       Appellant, Taylor K. Durant, appeals his conviction for misdemeanor driving while

intoxicated. 1 We will dismiss his appeal for want of jurisdiction.


                              Factual and Procedural History


       In July 2008, appellant was arrested for driving while intoxicated.    The guilt-

innocence phase of his trial was held on March 31, 2009, with the jury finding appellant

guilty. The punishment phase of trial began on April 1, 2009, at the end of which the



       1
           See TEX. PENAL CODE ANN. § 49.04 (Vernon 2003).
jury assessed punishment. On that same day, the trial court pronounced sentence in

accordance with the jury’s recommendations:


               Sir, you came before this Court and a jury and entered a plea of not
       guilty to the offenses as set out in the information. The evidence was
       submitted. The jury was charged by the Court, and[,] after deliberating[,]
       the jury has returned a verdict finding you guilty of the offense of driving
       while intoxicated and assessing your punishment at [ten] days in the
       county jail and a $1,000 fine. They recommend you be placed on
       community supervision with the serving of the jail time as a condition of
       the probation and the fine to be suspended.
              It is the judgment of this Court that you are guilty of this cause and
       guilty as charged in the information in accordance with the verdict
       rendered by the jury, that you be punished in accordance with the jury’s
       verdict.
             Is there any legal reason why sentence should not be pronounced
       against you? Counsel?
              * * *

              Finding nothing to bar the pronouncement of sentence against you,
       I sentence you to serve the sentence in accordance with the jury. I am
       going to order that you report to court in about a week or so, and we will
       get the exact date in just a second, so that a judgment can be prepared for
       your fingerprint, signatures, that will carry the conditions of probation on
       them.


The trial court went on to discuss generally appellant’s right to appeal and the trial

court’s authority to impose conditions of probation. Appellant filed a motion for new trial

on April 30, 2009. He filed his notice of appeal on July 29, 2009.

       On November 17, 2009, the Clerk of this Court sent to appellant a letter alerting

him to the possible defect in our jurisdiction over this matter and inviting a response to

the possible defect. Appellant did not file a response.




                                            2
                                        Analysis


      A timely notice of appeal is necessary to invoke a court of appeals’s jurisdiction.

Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In the absence of a timely-

filed notice of appeal that complies with the requirements of the Texas Rules of

Appellate Procedure, a court of appeals does not obtain jurisdiction to address the

merits of the appeal in a criminal case and can take no action other than to dismiss the

appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); O'Conner v. State,

266 S.W.3d 575, 577 (Tex.App.—Amarillo 2008, pet. ref’d).


      Generally, in a direct appeal from a judgment of conviction, we begin our

calculation of the time in which an appellant may file a notice of appeal from “the day

sentence is imposed or suspended in open court,” not the day the written judgment was

signed or filed. See TEX. R. APP. P. 26.2(a)(2); Rodarte v. State, 860 S.W.2d 108, 109–

10 (Tex.Crim.App. 1993); O'Conner, 266 S.W.3d at 577–78.           Here, the trial court

imposed sentence in open court on April 1, 2009. 2


      Because he timely filed a motion for new trial, appellant had ninety days after the

day sentence was imposed in open court to file his notice of appeal. See TEX. R. APP.

P. 21.4, 26.2(a)(2). Appellant, therefore, had until June 30, 2009, to file his notice of


      2
         Though neither party has addressed the issue of jurisdiction in briefing to this
Court, we note that appellant does not raise any issue concerning the imposition of
conditions of probation, a task which appears to have been completed several days
after oral pronouncement of sentence.          See Bailey v. State, 160 S.W.3d 11
(Tex.Crim.App. 2004). This appeal arises from an “ordinary” appellate context;
appellant challenges his conviction and sentence and raises one issue regarding the
propriety of the trial court’s denial of his motion for mistrial made in response to the
State’s improper jury argument. See O'Conner, 266 S.W.3d at 578.
                                           3
appeal. He filed his notice of appeal on July 29, 2009, well past both the deadline for

filing his notice of appeal and the time in which he could have sought an extension of

time in which to file a notice of appeal. See TEX. R. APP. P. 26.3. Hence, this appeal is

untimely, and we are without jurisdiction to hear it.


                                        Conclusion


       Having concluded that appellant’s notice of appeal was not timely filed and was,

therefore, ineffective to invoke our jurisdiction over this appeal, we dismiss his appeal

for want of jurisdiction. We, accordingly, deny as moot appellant’s motion seeking leave

to supplement the reporter’s record.




                                                        Mackey K. Hancock
                                                             Justice




Do not publish.




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