Opinion filed July 17, 2014

In The

Eleventh Court of Appeals __________

No. 11-14-00170-CR

__________

DONALD McKINLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-41,729

M E M O R A N D U M O P I N I O N

The jury convicted Appellant, Donald McKinley, of the offense of burglary 

of a habitation and assessed his punishment at confinement for fifty years and a 

$10,000 fine. We dismiss the appeal.

The documents on file in this case indicate that Appellant’s sentence was 

imposed on May 9, 2014, that a motion for new trial was not timely filed, and that 

a notice of appeal was filed in the district clerk’s office on June 23, 2014. When 

the appeal was filed in this court on June 25, 2014, we notified Appellant by letter 
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that the notice of appeal appeared to be untimely filed. We requested that 

Appellant respond on or before July 7, 2014, and show grounds to continue this 

appeal. We also informed him that the appeal may be dismissed for want of 

jurisdiction. 

In response to this court’s letter, Appellant filed a motion to extend the 

deadline for filing his notice of appeal. Appellant explained in his motion that he 

timely faxed a motion for new trial, that he intended to fax it to the district clerk 

for filing, but that he inadvertently sent it to a fax number similar to that of the 

district clerk. The motion for new trial was thus not timely filed. However, 

Appellant did not discover the mistake until he received this court’s June 25 letter. 

Pursuant to TEX. R. APP. P. 26.2(a), a notice of appeal is due to be filed 

either (1) within thirty days after the date that sentence is imposed 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 in open court. To be timely, a motion for new trial 

must be filed no later than thirty days after the date sentence is imposed. TEX. R.

APP. P. 21.4(a). Because Appellant did not timely file a motion for new trial, his 

notice of appeal was due on Monday, June 9, instead of ninety days after 

sentencing. 

The appellate rules provide for a fifteen-day extension of time to file a notice 

of appeal. See TEX. R. APP. P. 26.3. Rule 26.3 mandates, however, that both the 

notice of appeal and the motion for extension must be filed within fifteen days 

after the deadline for filing the notice of appeal. Although Appellant’s notice of 

appeal was filed within the time allowed by Rule 26.3, his motion for extension 

was not. 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 the appeal. Slaton v. 

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

(Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 
3

1993). Although we recognize that Appellant’s failure to timely file his notice of 

appeal may have been due to “accident or mistake” as he suggests, we have no 

jurisdiction to grant Appellant’s untimely motion for extension.

1

 See Olivo, 918 

S.W.2d 519. 

Accordingly, Appellant’s motion to extend the deadline for filing his notice 

of appeal is overruled, and this appeal is dismissed for want of jurisdiction. 

PER CURIAM

July 17, 2014

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

 1

We note that Appellant may, however, be able to secure an out-of-time appeal by filing a 

postconviction writ pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2013).