Jonathan Matthew McKee v. The State of Texas

Eastland, Texas - Criminal defense attorney represented Jonathan Matthew McKe with a Tampering With or Fabricating Physical Evidence charge

Jonathan Matthew McKee, Appellant, originally pleaded guilty to the offense

of tampering with physical evidence and was convicted of that offense. Appellant's

punishment was assessed at confinement for ten years and a fine of $750, but the

trial court suspended the imposition of the confinement portion of the sentence and

placed Appellant on community supervision for three years. Approximately one

year later, the trial court revoked Appellant's community supervision and imposed a

sentence of confinement for eight years in the Institutional Division of the Texas 2

Department of Criminal Justice plus the unpaid balance of the fine. Appellant filed

a pro se notice of appeal from the judgment revoking his community supervision.

Appellate counsel was subsequently appointed to represent Appellant. Because the

notice of appeal was not filed timely, we dismiss the appeal for want of jurisdiction.

Pursuant to the Texas Rules of Appellate Procedure, a notice of appeal is due

to be filed either (1) within thirty days after the date that sentence is imposed or

suspended in open court or (2) if the defendant timely files a motion for new trial,

within ninety days after the date that sentence is imposed or suspended in open court.

TEX.R. APP. P. 26.2(a). A notice of appeal must be in writing and filed with the clerk

of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this appeal

indicate that Appellant's sentence was imposed on August 17, 2020, that no motion

for new trial was filed, and that Appellant filed his notice of appeal on February 2,

2021, 169 days after his sentence was imposed. The notice of appeal was therefore

untimely.

Absent a timely filed notice of appeal or the granting of a timely motion for

extension of time, we do not have jurisdiction to entertain this appeal. Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519,

522–23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim.

App. 1993).

After the appeal was filed in this court, we notified Appellant and, later,

Appellant's counsel by letter that the notice of appeal appeared to be untimely and

that the appeal may be dismissed for want of jurisdiction. We requested a response

showing grounds to continue this appeal. Appellant filed a pro se response and a

"Motion For Continuance” in which he claims that the evidence is insufficient to

support his conviction. This court is not authorized to grant a "continuance” or a

request for an out-of-time appeal. See Slaton, 981 S.W.2d at 210. 3

Appellant's counsel also filed a response to this court's letter. Counsel cited

Basaldua and Article 11.072 of the Texas Code of Criminal Procedure as bases on

which this appeal may continue. See TEX.CODE CRIM. PROC. ANN. art. 11.072 (West

2015) (providing for procedure to file an application for writ of habeas corpus in a

felony or misdemeanor case in which the applicant seeks relief from an order

imposing community supervision); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim.

App. 1977) (involving question of jurisdiction over appeal and, alternatively,

application for habeas corpus from an order modifying the conditions of probation).

Neither Basaldua nor Article 11.072 involves the jurisdiction of an appellate court

to consider an appeal in which the notice of appeal was untimely filed, and neither

is applicable to this appeal.

Appellant has not provided this court with any grounds upon which this appeal

may be continued. Because the notice of appeal was not timely filed, we have no

jurisdiction over this appeal and must dismiss it. See Slaton, 981 S.W.2d at 210.

Accordingly, we dismiss this appeal for want of jurisdiction.

Accordingly, we dismiss this appeal for want of jurisdiction.