DARLINGTON v. STATE No. 05-10-00025-CR.


Court of Appeals of Texas, Fifth District, Dallas.
Opinion Filed July 21, 2010.
Before Justices O'NEILL, FRANCIS, and MURPHY.




After the trial court denied his motion to quash the indictment, Christy Brigette Darlington pleaded guilty to sexual assault of a child. On November 24, 2009, in accordance with the plea agreement, the trial court deferred adjudicating appellant's guilt, placed him on five years' community supervision, and assessed a $1500 fine.1 Appellant filed a motion for new trial on December 15, 2009 and a notice of appeal on January 6, 2010. Because a motion for new trial is not available at the time adjudication of guilt is deferred, see Donovan v. State, 68 S.W.3d 633, 636 (Tex. Crim. App. 2002), it is not effective to extend the time for filing a notice of appeal. See Murray v. State, 89 S.W.3d 187, 188 (Tex. App.-Dallas 2002, pet. ref'd). Therefore, at the latest, appellant's notice of appeal was due Monday, December 28, 2009.2 See Tex. R. App. P. 4.1(a), 26.2(a)(1).

Appellant's January 6, 2010 notice of appeal was filed within the fifteen-day period provided by Texas Rule of Appellate Procedure 26.3. See Tex. R. App. P. 26.3(a). Appellant did not, however, file a motion to extend time to file his notice of appeal in this Court within that same fifteen-day period. See id.; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex. App.-Dallas 1998, no pet.). Therefore, we have no jurisdiction over the appeal. See Slaton, 981 S.W.2d at 210; Boyd, 971 S.W.2d at 606.

We dismiss the appeal for want of jurisdiction.


1. The plea agreement provided for a $3000 fine. The trial court reduced the fine to $1500. This lowering of the fine did not change the fact that this a plea agreement. See Talley v. State, 77 S.W.3d 904, 906 (Tex. App.-Dallas 2002, no pet.).
2. Thursday, December 24, 2009, was Christmas Eve, and Friday, December 25, 2009, was Christmas Day. This Court was closed both those dates. For purposes of this opinion, the Court will presume the Dallas County District Clerk's Office was likewise closed on those dates.


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