Noel Constancio v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

00-00248 Constancio v State of Texas.wpd No. 04-00-00248-CR
Noel CONSTANCIO,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CR-2369
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 16, 2000

APPEAL DISMISSED FOR LACK OF JURISDICTION; MOTION FOR LEAVE TO FILE LATE NOTICE OF APPEAL DISMISSED FOR LACK OF JURISDICTION

Sentence in the above-numbered case was imposed on January 10, 2000. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed February 9, 2000. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on February 24, 2000. Tex. R. App. P. 26.3. Appellant filed a motion for leave to file a late notice of appeal on April 19, 2000.

A court of appeals' jurisdiction is invoked by a timely, written notice of appeal. Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988). Notice of appeal is timely if filed within thirty days of the day sentence is imposed or suspended in open court, ninety days if a timely motion for new trial is filed. Tex. R. App. P. 26.2. A late notice of appeal may be deemed timely and would invoke a court of appeals' jurisdiction to entertain the appeal if: (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time reasonably explaining the need for the extension is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); See Tex. R. App. P. 26.3. Compliance with the first two requirements allows the court of appeals to act on the motion for extension of time. Here, neither a notice of appeal nor a motion for extension of time was filed within fifteen days after the last day allowed by Rule 26. Accordingly, we lack jurisdiction over the appeal. Olivo, 918 S.W.2d at 522. Because we lack jurisdiction over the appeal, we also lack jurisdiction over appellant's motion for leave to file a late notice of appeal.

The appellant in a criminal case may pursue an out-of-time appeal by filing a writ of habeas corpus with the Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp.1997); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); Charles v. State, 809 S.W.2d 574, 576 (Tex. App.--San Antonio 1991, no pet.).

The appeal is dismissed for lack of jurisdiction. Appellant's motion for leave to file a late notice of appeal is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH