NO. 07-00-0438 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C DECEM BER 10, 2001

______________________________ CHRISTIAN THOMAS STUM PF, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 184 TH DISTRICT COURT OF HARRIS COUNTY; NO. 830185; HON ORABLE JAN K ROCKER , JUDGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. App ellant Chr is ti an Th omas Stu mpf a pp ea ls fr om hi s co nv ic ti on an d se nt en ce of two years incarceration for possession of com ponents of ex plosives. W e dismiss for lack of jurisdiction. On July 11, 2000, pursuant to a plea bargain, appellant pled guil ty to the charge of possession of com ponents of ex plosives in the 184 th District Court of Harri s County, Texas.1 The a ppeal was transfe rred from the 14 th Court of Appeals to t he 7 th Court of

Appeals in Am arillo by order of the Texas Suprem e Court. 2 The trial court honored the plea bargain and sentenced appellant to incarceration in the Texas Depart ment

of Criminal Justice-Institutional Division, for two yea rs. The Clerk’s Record contains two separate pro se documents which purport to have been signed by appellant on August 16, 20 00, and on which handwritten notations state “postm arked 8-18-00.” One docum ent is a Notice of Appeal (“the Notice ”); the other i s a Motion to Ex

tend Time for Filing Noticeof Ap peal (“the Motion to Ex tend Tim e”). Handwritten notations on both pro se docum ents indica te that they w ere in possession of either th e distri ct clerk’s office or the trial court as earl y as August 23, 2000. The Noti ce bears a file mark of the district clerk dated Septem ber 5, 2000. A certificate accom panying the Motion to Ex

tend Time certifies that it w ould have been filed on Septem ber 5, 2000, if it had been fil e-marked when received by the cl erk’s office. Addi tional ly, the Motion to Exten d Timebears a f i l e s ta mp from the 14 th Court of Appeals in Houston showing a date of August 21, 2 000. 1 The Motion to Ex tend Time request

s an extension of tim e for filing of Notice of A ppe al be cau se a ppe llant w as a ppe arin g on app eal prose and w as unaw are of thetim e re quir

em ents fo r filin g hisNot ice of A ppe al un til h e discovered th e t i me requirement through his own effortsand research. Counsel for appellant has filed a Motion to Wi thdraw and a Brief in Support thereof. In support of

the m otion to withdraw , counsel has certified that, in com pliance with Anders
v. Cal ifor nia , 386 U.S. 738, 744-45, 87 S.C t. 1396, 18 L.Ed. 2d 493 (1967), the record has2 Further reference to a Texas Rule of Appellate Procedure w ill be by “TRAP_.” 3 been diligently review ed and t hat in theopinion of counsel, t he re cord refl ects no rev ers ible error or grounds upon w hich an arguably meritorious appeal can be predicated. Coun sel concludes that the j urisdiction of this court has not been invoked, and that the appeal mu st be dism issed for lack of j urisdiction. Counsel thus concludes that the appeal is without m erit. Counsel has discussed w hy, under the controlling authorities, there is no rev ers ible error in the trial court proceedings or judgm ent. See High v. State , 573 S.W.2d 807, 813 (Tex.C rim.App. 1978). Counsel has attached ex hibits showing that a copy of the Andersbrief and Motion to W ithdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant’s right to review the record and fi le a respon se to counsel’s mo tion and brief. The cl erk of this court has likewise advised appellant of his right to file a response to counsel’s m otion and Andersbrief. Appellant has not filed a response. In a criminal case, appeal is perfected by timely filing a notice of appeal. T EX . R. A PP . P. 25. 2(a). 2 The notice of appeal m ust be filed within 30 days after theday sentence is imposed unless a timely m otion for new trial is filed. TRAP 26.2(a). The t ime for filing a notice of

appea l may be extend ed for 15 days u nder ce rtai n cir cumstances. TRAP 26.3. If thetim e fo r filin g a n otice of app eal is

to be ext ended, both a notice of appeal and a mot ion for extens ion of time w hich comp lies with TRAP 10.5(b) m ust be filed within the 15 day period. TRAP 26. 3; Olivo v. State , 918 S. W .2d 519, 523-25 ( Tex. Crim .App. 1996). An untimely-filed no tice of appeal w ill not invoke t he j urisdiction of the co urtof4

appeals. See Sta te v. R ie we , 13 S.W.3d 408, 411 (Tex.Crim .App. 200 0). Thus, if an appeal is not timely perfec ted, a court of

appeals does not have j urisdiction to address the meritsof the appeal, and can takeno action other than to dism iss the appeal. Slaton v. State , 981 S.W.2d 208, 210 (Tex.Crim .App. 1998); Olivo , 918 S.W.2d at 523-25. To perfect appeal from a judgm ent which w as rendered on the defendant’s plea of guilty or nolo contende re , an d in w hich thepun ishm ent ass ess ed d id no t exceed the punishment

recom mende d by the prosecutor and agreed to by the def endant, the notice of app eal m ust

(a)spe cify

tha t th e ap pea l is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written m otion and ruled on before trial; or (c) state thatthe trial court granted perm ission to appeal. If appeal as to an issue o r m att er is pro per lyperfected as to for m, a court m ust exam ine the reco rd u nde rly ing the notice of appeal to d ete rm ine if

jurisdiction substantively ex ists as to the issue or m atter in question. Sherm an v. State , 12 S.W.3d 489, 492 (Tex.App. --Dallas 1999, no pet.). Dism issal of an issue or the entir e matter is appropri ate unless bo th (1) the form of the notice of app eal is proper to perfect appeal as to the issue or m atter, see Lyon v. State , 872 S.W.2d 732, 736- 37 (Tex.Crim .App. 1994), and (2) thealleged jurisdiction is supported by the record. See Sherm an , 12 S.W.3d at492. In other w ords, if TRAP 25.2(b)(3) is applicable, then for an appellate court to have i ts j uris dict ion i nvoked over a matter , compli ance wit h TRAP 25.2(b)(3) is required as to both form and substance. Id

. In the m atter be fore us , appellant did not file his Notice o f Appe al or a mo tion for new trial within 30 days of im position of sentence. Unless we grant the Motion to E xtend5

Time, appellant has not invoked our jurisdicti on, and we must dism iss the appeal for lack of jurisdiction. See Slaton , 981 S.W.2d at 210. The Notice may have been f iled within the time allowed pursu ant to TRAP26.3, although it was not f

ile-marked by the district clerk until after ex piration of the possible 15- dayextension of tim e allowed by TRAP26.3. The Motion to Extend Time for Fili ng Notice of Appeal was

timely filed, according to the file m ark from the 14 th Court of Appeals. If we grant a ppellant’s Motion to Exten d Time, the form of appellant’s Notice of Appeal m ust be examined for compliance w ith TRAP 25.2(b)(3), and the record m ust be exam ined for sub stantivecom pliance w ith TRAP 25.2(b)( 3). See Sherm an , 12 S.W.3d at 492. And, having exam ined the record for s ubstan tive com pliance w ith TRAP 25.2(b)( 3), we fi nd th at th e r ec or d d oe s no t su pp or t co mpl ia nc e wi th that ru le so as to invoke our appellate jurisdiction: the trial court did not give permission for appellantto appe al; there are no pre-trial motions w hich were overruled; and jurisdiction wasproperly vested in the trial court by presentation of an indictment. See T EX . C ONST . art. 5, § 12 ; Ex pa rte Long , 910 S.W.2d 485, 486 (Tex.Crim .App. 1995). Thus, it is imm aterial to the appeal whether app ella nt’s Notice wasfiled within the 15-dayextension tim e period allowed by TRAP 26.3 and, if so, wheth er we grant appell ant’s Motion to Ex tend Time to File Notice of Appeal, or wh ether

we deny the Motion. Either way, appellant has not inv oke d ou r j uris dict ion a nd w e m ust dism iss theapp eal.6

Accordingl y, w e de ny a ppe llant ’s Mo tion to E xtend Tim e to File Notice of Appeal. The appeal is dismissed for lack of j urisdiction. See Slaton , 981 S.W.2d at 210.

Because we haveno jurisdiction over the appeal except to dism iss it, see id ., we cannot and do not cons ider appellate counsel’s Motion to Wi thdraw.

Phil Johnson Justice Do not publish.