Ex Parte Gustavo Villalpando--Appeal from County Court at Law No 7 of Bexar County

99-00870 Ex parte Villalpando.wpd No. 04-99-00870-CR
EX PARTE Gustavo VILLALPANDO
From the County Court at Law No. 7, Bexar County, Texas
Trial Court No. 366034
Honorable Bill White, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: June 21, 2000

DISMISSED FOR LACK OF JURISDICTION

The trial court's order denying appellant's application for writ of habeas corpus was signed on September 22, 1999. Appellant's notice of appeal was due on October 22, 1999. See Tex. R. App. P. 26.2. Appellant's notice of appeal was not filed until November 15, 1999.

On May 19, 2000, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.(1) On June 2, 2000, appellant's court-appointed attorney on appeal responded to our order. Appellant's attorney concedes that the notice of appeal was filed untimely and that this court lacks jurisdiction. However, appellant's attorney states that we need not dismiss the appeal on that ground. Appellant's attorney asserts that we should dismiss the appeal because we have no jurisdiction to consider an appeal from the denial of an application for writ of habeas corpus.

We note that the second ground asserted by appellant's attorney as a basis for dismissing this appeal is incorrect. This appeal is from an order on a post-conviction application for writ of habeas corpus relating to a misdemeanor conviction. We have jurisdiction to consider such an order. See Ex parte Jordan, 659 S.W.2d 827, 828 (Tex. Crim. App. 1983) (appeals from denial of relief sought in a misdemeanor post conviction writ of habeas corpus should be directed to the courts of appeals). In addition, we note that if the application was a pre-trial application for writ of habeas corpus, which is the rule cited by appellant's attorney, we would have had jurisdiction if the notice of appeal had been timely because the record (including the memo from appointed trial counsel to the trial judge and the trial judge's letter to the appellant) shows that the trial court considered the merits of the arguments raised in the habeas application. See Ex parte Gonzales, 12 S.W.3d 913 (Tex. App.--Austin 2000, pet. ref'd).

Because appellant's notice of appeal was untimely filed, this appeal is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH

1. Although it appeared from our records that appellant did not receive notice of the trial court's ruling until October 14, 1999, and appellant's notice of appeal was filed thirty days from that date, we noted in our show cause order that this court was not aware of any rule that would permit us to extend the deadline for filing the notice of appeal under those circumstances.