NO. 07- 94- 006 6-CR IN THE COURT O F APPEA LS FOR T HE SEVE NTH DISTRICT OF TEXAS

AT AMAR

ILLO PANEL A MARCH 25, 1994

______________________ B OB B Y CHA

RLES EVA NS , APPELLA

NT V. THE S TATE O F TEXAS , APPELLEE

______________________ FROM T HE 50T H JUD ICIAL D ISTRICT COURT OF C OTTL E COU NTY;

NO. 2680; HONORABLE D AVID HAJE K, JUDGE

______________________ B efore REYNOLDS, C. J. , and DODSON and B OYD, JJ. Appellant Bobby Charles Evans was convicted of the offe nse of delivery of a contr olled substance and

hi s p un ishm e nt w a s a ss e ss e d a

t t w e nt y- f iv e ( 25 ) ye ars confine

ment. Attempt

ing to appeal from his conviction, he has untimely filed a motion to extend the time for filing a notice of appeal. As this co urt lacks jurisdiction to consider his appeal, we must overr ule the motion a nd dismis s the appe al.
Inhis extension motion, appellant states that the trial cour t imposed sentence on October 20, 1993. Thereafter, appella nt filed a motion f or new tria l " on o r about" December 6, 1993, with a hearing on the motion being held on January 25, 1994. On Febr uary 10, 1994, the trial2

court signed a n order over ruling the motion f or new trial, a copy of which is a

ttached to appellant' s extension motion.
Pur suant to Rule 41(b)(1) of theTexas Rule s of Appe llatePr ocedure, in the absence of a motionfor new trial, an appeal is perfected by filing a notice of appea l with the trial cou

rt within thirty (30) days after the date sen tence is imposed

. If a motion for new trial is timely filed, notice of appeal shall b e file d within ninety (90) days after the day sentence is imposed. Inasmuch as
a motionfor new trial must also be filed with

in thirty (30) days

after sentence

is imposed, Tex. R. App
. P. 31(a)( 1), appella nt' s motion f

or new trial was untimely filed and does not s erve to extend the time for per fecting the appeal. That being the case, to be timely, it was necessary for appellant to file his notice of appeal not later than November 21, 1993.
Even if the motion for new tr ial had been timely filed, and even if the trial cour t had not signed the order overr uling it, the motion for new tr ial would have been overr uled by operation of law on January 3, 1994. Tex. R. App. P. 31(e)( 1)(3). T hus, even und er that scenario, to be timely, notice of appeal must have been given not late r than F ebruar y 2, 1994. If the notice of appeal is not timely filed, the appellate court lacks jur isdiction over the appeal, Rodarte v. State , 860 S. W. 2d 108, 110 (Tex. Cr im. App. 1993), unless the notice of appeal
and a m ot ion f or e xt e ns ion o f ti m e to f il e su c h n ot ic e are filed within fifteen (15) days after the last day allowed to file the notice of appeal. Tex. R. App. P. 41(b)(2). The r ule imposing the fifteen-day

limit for filing the motion for an extension of time has been, since its incep t ion, construed as mandatory. Meshwe rt v. Meshwe

rt , 549 S. W. 2d 383, 384 (Tex. 1977). Ther efore, the appellate court does not have the author ity to consider an extension motion tendered after the fifteen-day lim

it. B. D. Click Co. v. Safari Drilling Corp. , 638 S. W. 2d 860, 861 (Tex. 1982).3

Inasmuch as appellant' s motion for extension of time for filing his notice of appeal was not filed within fif

teen (15) days after the last day allowed for its fil ing, no timely notice of appeal
was given. Thus, we have no jurisdiction to conside r this appeal and it must be dismissed. Shute
v. State , 744 S. W. 2d 96, 97 (Tex. Cr im. App. 1988). That being true, appellant' s motion is moot and must be overr uled. Accordingly, appellant' s appeal is dismissed.

John T. Boyd Justice Do not publish.