John Albert DeHoyos v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-00-00603-CR

John Albert DEHOYOS,
Appellant
v.
STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-0277W
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: October 18, 2000

APPEAL DISMISSED FOR WANT OF JURISDICTION

The appellant, John Albert DeHoyos, was convicted of possession of cocaine with intent to deliver and sentenced to eight years confinement. Because DeHoyos' notice of appeal was untimely filed, we dismiss his appeal for want of jurisdiction.

DeHoyos was sentenced on June 7, 2000. A motion for new trial or notice of appeal was due July 7, 2000. See Tex. R. App. P. 26.2. A motion for new trial was timely filed on July 7, 2000 and extended the due date for the notice of appeal until September 5, 2000. A motion for extension of time to file the notice of appeal was due in this court September 20, 2000, see Tex. R. App. P. 26.3, but no such motion was filed. The notice of appeal was filed September 6, 2000.

Because our initial review of the record indicated we did not have jurisdiction in this case, we ordered DeHoyos to show cause why this appeal should not be dismissed. In response, DeHoyos replied that although the notice of appeal was filed late, this court should accept jurisdiction because DeHoyos timely filed a request for findings of fact and conclusions of law in the trial court. DeHoyos asks this court to hold that the request gave sufficient notice of DeHoyos' intent to appeal under Tex. R. Civ. App. 25.2(b)(2). See Buchanan v. State, 881 S.W.2d 376, 378 (Tex. App.-Houston [1st Dist.] 1994), dism'd in part, rev. in part on other grounds, 911 S.W.2d 11 (Tex. Crim. App. 1995) (allowing defendant's request for statement of facts to serve as adequate notice of appeal).

We have previously held that Rule 25.2 requires an independent notice of appeal. Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.-San Antonio 1996, no pet.); accord Cooper v. State, 917 S.W.2d 474, 477 (Tex. App.-Fort Worth 1996, pet. filed); Williford v. State, 909 S.W.2d 604, 605 (Tex. App.-Austin 1995, no pet.). A request for findings of fact and conclusions of law is no more than a preliminary step to filing an appeal. Cf. Cooper, 917 S.W.2d at 477 (request for appointment of counsel a step to filing appeal). The Texas Court of Criminal Appeals has rejected a "liberal policy" when the perfecting instrument is untimely. Rivera, 940 S.W.2d at 148 (citing Olivo v. State, 918 S.W.2d 519, 524 (Tex. Crim. App. 1996)).

Because the notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the appeal. See Olivo v. State, 918 S.W.2d at 522 (explaining that both the notice of appeal and the motion for extension of time must be filed within the fifteen-day extension). (1) Accordingly, we dismiss John Albert DeHoyos' appeal for want of jurisdiction.

PER CURIAM

DO NOT PUBLISH

1. The appellant here, unlike his civil counterpart, may pursue an out-of -time appeal by filing a writ of habeas corpus. See Tex. Code Crim. Pro. Ann. art. 11.07 (Vernon Supp. 2000); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991); Rivera, 940 S.W.2d at 149.