Ex Parte: Dalila Aguilar--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-05-00220-CR

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) Appeal from the

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EX PARTE: DALILA AGUILAR ) 346th District Court

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) of El Paso County, Texas

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) (TC# 20050D02002)

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O P I N I O N

Dalila Aguilar attempts to appeal the trial court=s denial of her pretrial application for writ of habeas corpus seeking release pursuant to Article 17.151 of the Texas Code of Criminal Procedure. The issue before us is whether Appellant timely filed her notice of appeal. We conclude that she did not and dismiss the attempted appeal for want of jurisdiction.

The trial court denied Appellant=s application for writ of habeas corpus on May 5, 2005. Appellant filed her notice of appeal on June 15, 2005, forty one days after the trial court=s ruling denying the application.

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). Tex.R.App.P. 26.2(a) prescribes the time period in which notice of appeal must be filed by the defendant in order to perfect appeal in a criminal case:

(a) By the Defendant. The notice of appeal must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or

(2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.

Therefore, a defendant=s notice of appeal is timely if filed within thirty days after the day the trial court enters an appealable order. Tex.R.App.P. 26.2(a); Olivo, 918 S.W.2d at 522.

On June 21, 2005, this Court notified Appellant that it appeared that we did not have jurisdiction over this appeal because the notice was not timely perfected. We further notified Appellant that this appeal would be dismissed for want of jurisdiction unless any party within ten days could show grounds for continuing the appeal. On June 24, 2005, we received Appellant=s response to our notification. As grounds for continuing the appeal, Appellant directs our attention to her June 1, 2005 letter to the trial judge in which she requested a rehearing. We understand Appellant to be arguing that her June 1, 2005 letter constitutes a motion for new trial, which would extend the appellate timetable for filing her notice of appeal. According to Appellant, this letter was hand-delivered to the 346th District Court and a copy provided to the District Attorney=s Office was stamp marked as received by their office. However, the June 1, 2005 letter was not filed with the District Clerk. Therefore, we conclude Appellant did not file a motion for new trial in this case.

Since Appellant did not file a motion for new trial, the last date allowed for timely filing of the notice of appeal was June 4, 2005, thirty days after the day the trial court entered the order denying the application for writ of habeas corpus. Tex.R.App.P. 26.2(a)(1). Appellant did not file her notice of appeal until June 15, 2005 and failed to file a motion for extension of time. See Tex.R.App.P. 26.3; Tex.R.App.P. 10.5(b)(2). Therefore, Appellant failed to perfect this appeal. A notice of appeal which complies with the requirements of Tex.R.App.P. 26 is essential to vest a court of appeals with jurisdiction over the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Id. at 210. Under such circumstances, we can take no action other than to dismiss the appeal. See id.

Accordingly, we dismiss the appeal for want of jurisdiction.

July 7, 2005

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)