Background
Jamison Whitaker filed a pro se notice of appeal with the 443rd District Court of Ellis County, Texas, seeking to appeal his conviction in Trial Court Cause No. 49332CR. Senior Judge Cynthia Ermatinger presided over the trial court proceedings. The trial court forwarded Whitaker’s notice to the Tenth Court of Appeals. According to the appellate court’s memorandum opinion, sentence was imposed on October 23, 2024. A footnote explains that Whitaker’s notice referenced both the date of conviction and the offense he was attempting to appeal. The opinion does not identify that offense or describe the underlying trial evidence.
This was not Whitaker’s first direct appeal to the Tenth Court concerning the judgment. The court stated that it had already addressed his direct appeal in Cause Number 10-24-00357-CR. It affirmed the judgment of conviction by opinion and judgment dated August 7, 2025, and issued its mandate on October 8, 2025. The new proceeding, docketed as Cause Number 10-26-00438-CR, arose from a notice of appeal filed in the trial court on October 26, 2026—more than two years after the date on which sentence was imposed and more than a year after the court issued its mandate in the earlier appeal.
Chief Justice Johnson delivered the opinion of the Court. The opinion was delivered and filed on November 5, 2026, before Chief Justice Johnson, Justice Harris, and Senior Justice Steve Smith. A footnote identifies Smith as a retired senior justice of the Tenth Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Texas. The opinion was marked “Do not publish.”
The Court’s Holding
The court dismissed the appeal for lack of jurisdiction because the notice of appeal was untimely. It stated the governing timing requirement directly: “A notice of appeal must be filed within 30 days of the imposition of sentence.” The opinion cited Texas Rule of Appellate Procedure 26.2(a)(1) for that requirement. Applying the rule to the dates before it, the court held that the notice filed in the trial court on October 26, 2026, was untimely relative to the October 23, 2024 imposition of sentence.
The jurisdictional conclusion followed from that timing determination. The court wrote: “Accordingly, we lack jurisdiction over this appeal and this appeal is dismissed.” The opinion did not review the conviction again, reassess the earlier affirmance, or address any substantive challenge to the judgment. Its holding concerned the court’s power to entertain this particular appeal, not the merits of Whitaker’s conviction or any issue that might have been raised in the earlier direct appeal.
The court also expressly limited what it did not decide. In a footnote, it explained: “Because this notice of appeal was clearly untimely, we do not need to address the propriety of Whitaker appealing the judgment for the second time.” Thus, although the opinion recounted the prior appeal, affirmance, and mandate, it did not base dismissal on a separately articulated rule categorically governing every second appeal attempt. The stated ground was the untimely notice and the resulting absence of jurisdiction; the propriety of a second appeal was left unaddressed in this case.
Key Takeaways
- The Tenth Court dismissed Whitaker’s appeal because his October 26, 2026 notice of appeal was untimely under the 30-day requirement stated in Texas Rule of Appellate Procedure 26.2(a)(1).
- The relevant sentence was imposed on October 23, 2024, and the court concluded that the lengthy delay deprived it of jurisdiction over the new appeal.
- The court had previously affirmed the conviction in Cause Number 10-24-00357-CR on August 7, 2025, and issued its mandate on October 8, 2025.
- The court did not decide whether Whitaker could properly appeal the judgment a second time; it expressly declined to reach that question because the notice was clearly untimely.
Why It Matters
The opinion is a concise application of the notice-of-appeal deadline as a jurisdictional prerequisite in this criminal appeal. For practitioners, the significant point is the sequence of the court’s analysis: it identified the date sentence was imposed, applied the 30-day filing requirement, found the October 26, 2026 notice untimely, and dismissed for lack of jurisdiction. The court did not proceed to the merits after making that determination.
The decision also requires careful distinction between the procedural history and the actual holding. The earlier affirmance and mandate establish that Whitaker had already pursued a direct appeal, but the court did not announce a universal rule about successive attempts to appeal the same judgment. Its express reservation of the second-appeal issue limits the holding to the untimeliness and jurisdictional grounds stated in the opinion.