William Saya, Jr. v. The State of Texas--Appeal from 210th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WILLIAM SAYA, JR., )

) No. 08-04-00309-CR

Appellant, )

) Appeal from the

v. )

) 210th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 980D08492)

)

MEMORANDUM OPINION

Appellant William Saya, Jr. attempts to pursue an out-of-time appeal. On October 29, 1998, Appellant plead guilty to the offense of aggravated sexual assault of a child. Appellant received deferred adjudication pursuant to Article 42.12, ' 5(a) of the Texas Code of Criminal Procedure and was placed on community supervision for a period of 4 years, in accordance with the plea agreement. On October 11, 2002, Appellant was adjudicated guilty and the trial court assessed punishment at 15 years= imprisonment in the Institutional Division, Texas Department of Criminal Justice. On September 25, 2003, Appellant filed an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure in the Court of Criminal Appeals. On June 9, 2004, the Court of Criminal Appeals remanded the matter to the trial court for resolution of facts in Appellant=s application and for entry of findings of fact and conclusions of law. On August 25, 2004, the trial court entered its findings of fact and conclusions of law, in which it recommended that Appellant=s petition for writ of habeas corpus be granted, but be limited to an out-of-time appeal only as to the punishment phase of his adjudication of guilt.

On September 10, 2004, Appellant filed his notice of appeal with this Court. In the notice of appeal, Appellant states that the Court of Criminal Appeals issued an order giving him the opportunity to pursue an out-of-time appeal. By letter dated November 24, 2004, the clerk of this Court informed Appellant of our intent to dismiss the appeal for want of jurisdiction because it appeared from the documents on file that the trial court had recommended that Appellant be granted an out-of-time appeal, but the Court of Criminal Appeals had not yet acted on this recommendation, therefore Appellant=s notice of appeal was premature.

On December 1, 2004, the trial court informed the Court that on November 10, 2004, the Court of Criminal Appeals denied without written order Appellant=s application for writ of habeas corpus. The Court of Criminal Appeals has exclusive jurisdiction to address any request for an out-of-time appeal by an application for writ of habeas corpus. See Tex.Code Crim.Proc.Ann. art. 11.07, ' 5 (Vernon Supp. 2004-05).

A timely notice of appeal is necessary to invoke the jurisdiction of this Court. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996); See Tex.R.App.P. 26.2(a). Appellant=s notice of appeal was due almost two years ago. The Court of Criminal Appeals has determined that Appellant is not entitled to an out-of-time appeal. Absent appellate jurisdiction, we have no authority to take any action except to dismiss the appeal. Olivo, 918 S.W.2d at 523. Accordingly, we dismiss the appeal for want of jurisdiction.

January 13, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)