Robert Elvira v. The State of Texas--Appeal from 243rd District Court of El Paso County

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00288-CR

Appeal from the

243rd District Court

of El Paso County, Texas

(TC#970D07702)

According to documents filed in this Court, the trial court signed an order in this case on May 5, 2003. Appellant did not file a motion for new trial, but he filed a notice of appeal on June 11, 2003. On June 19, 2003, we notified the parties of our intent to dismiss the appeal for want of jurisdiction because it appeared that the notice of appeal was not timely perfected. See Tex. R. App. P. 26.2(a). We also notified the parties that the notice of appeal is defective because it does not contain the trial court's certification of the defendant's right of appeal. See Tex. R. App. P. 25.2(d).

Appellant's court-appointed counsel has filed a response to our notice, stating that on May 5, 2003, the trial court dismissed a motion to revoke appellant's probation and modified appellant's probation by sending him to the Substance Abuse Felony Program. Counsel concedes that appellant did not timely file his notice of appeal and did not obtain the trial court's certification of his right to appeal. Attached to the response is a copy of the order dismissing the motion to revoke and modifying the terms of appellant's probation.

Assuming the trial court signed an appealable order on May 5, 2003, appellant's notice of appeal was due on June 4, 2003. See Tex. R. App. P. 26.2(a). Therefore, the notice of appeal filed on June 11, 2003 was untimely. We may grant an extension of time to file the notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time. Tex. R. App. P. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Although appellant filed his notice of appealwithin the fifteen-day grace period, he did not file a motion for extension of time. Accordingly, we lack jurisdiction over the appeal. See Olivo, 918 S.W.2d at 522.

Moreover, an order modifying the terms of probation is not subject to a direct appeal. See Tex. Code Crim. Proc. Ann. art. 42.12, 22, 23(b) (Vernon Supp. 2003); Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Elizondo v. State, 966 S.W.2d 671, 672 (Tex. App.--San Antonio 1998, no pet.). Redress for an error in the modification of probation is appropriate only through a writ of habeas corpus returnable to the Texas Court of Criminal Appeals. Basaldua, 558 S.W.2d at 5; Elizondo, 966 S.W.2d at 672.

For the reasons stated herein, this appeal is dismissed for lack of jurisdiction.

SUSAN LARSEN, Justice

July 10, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)