



NUMBER 13-00-179-CR 


COURT OF APPEALS 


THIRTEENTH DISTRICT OF TEXAS 


CORPUS CHRISTI 
____________________________________________________________________ 


THE STATE OF TEXAS, Appellant, 


v. 


MANUAL ZAVALA, Appellee. 


___________________________________________________________________ 


On appeal from the County Court at Law Number Two 
of Collin County, Texas 
___________________________________________________________________ 


OPINION 


Before Justices Hinojosa, Yañez, and Chavez 
Per Curiam 


This is an attempted appeal by the State of the trial court's grant of a motion to dismiss an information. The order of
dismissal was signed on January 24, 2000, and the State's notice of appeal was due on February 8, 2000. Any motion to
extend the time for filing the notice of appeal was due on February 23, 2000. The State filed its notice of appeal on
February 23, 2000, and a motion for extension of time to file the notice of appeal on March 31, 2000. Because neither
motion was filed timely, we dismiss the appeal for want of jurisdiction. 
A timely filed notice of appeal which complies with the requirements of rule 26 is essential to vest a court of appeals with
jurisdiction. Tex. R. App. Proc. 26; Slaton v. State, 981 S.W.2d 208, 209 (Tex. Crim. App. 1998); Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Without jurisdiction, a court of appeals cannot address the merits of the appeal
and may take no action except to dismiss the appeal. Slaton, 981 S.W.2d at 209; Olivo, 918 S.W.2d at 523. 
In this case, the State's notice of appeal and its motion for extension of time were not filed timely. Thus, unless there is
some exception to the application of the rules, we have no jurisdiction to consider this case. 
The Texas Supreme Court has created such an exception for civil cases. In Verburgt v. Donner, 959 S.W.2d 615 (Tex.
1997), the supreme court held that "a motion for extension of time is necessarily implied when an appellant acting in good
faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the appellant would
be entitled to move to extend the filing deadline under Rule 41(a)(2)." Id. at 617. Although Verbergt was decided under the
former rules of appellate procedure, the exception has been held applicable to the filing of a notice of appeal under the
current rules. Smith v. Houston Power & Lighting Co., 7 S.W.3d 287, 288 (Tex. App.--Houston [1st Dist.] 1999, no pet.
h.); Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.--Amarillo 1999, no pet. h.); Coronado v. Farming Technology, Inc., 994
S.W.2d 901, 901-02 (Tex. App.--Houston [1st Dist.] 1999, no pet.). 
However, this exception has never been recognized in criminal cases. The facts of the instant case were present in Olivo:
the notice of appeal was filed within the fifteen-day period for filing a motion for extension of time to file notice of appeal,
but without any motion for extension of time. The Court of Criminal Appeals held: "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." Olivo, 918 S.W.2d at 532. The court further held that a court
of appeals could not use the rule-suspension provision of former rules of appellate procedure 2(b) or 83 to acquire
jurisdiction, even though the Texas Supreme Court had followed a more liberal policy for civil cases. Id. at 532-24. 
Since the Verburgt(1) decision, the Court of Criminal Appeals has held that its decision in Olivo remains unchanged, even
though the rules of appellate procedure have been revised. Slaton, 981 S.W.2d at 209-10. Furthermore, the Court of
Criminal Appeals has declined to re-examine Olivo in light of the Verburgt opinion. See Williams v. State, 957 S.W.2d 949,
950 (Tex. App.--Austin 1997, no pet.); Slaton, 981 S.W.2d at 209 n.3 (in which the Court of Criminal Appeals expressly
rejects the Williamsrationale). 
It is clear that the Olivo rule is alive and well. Accordingly, we must deny the State's motion for extension of time to file the
notice of appeal and dismiss this appeal for want of jurisdiction. 



Per Curiam 



Publish. 
Tex. R. App. P. 43.7. 


Order delivered and filed 
this the 20th day of April, 2000. 
1. The Supreme Court acknowledged that a different rule is applied in criminal cases. See Verburgt, 959 S.W.2d at 616. 
