Hector Perez, Jr. v. State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-00-00861-CR

Hector PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court of Bexar County, Texas
Trial Court No. 1999-CR-2082
Honorable James Barlow, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 28, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on July 19, 2000. Because Appellant filed a motion for new trial, the notice of appeal was due to be filed October 17, 2000. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on November 1, 2000. Tex. R. App. P. 26.3. Appellant filed his notice of appeal on December 7, 2000. Appellant did not file a motion for extension of time.

On January 12, 2001, we ordered appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant filed a response on January 26, 2001, explaining that he miscalculated the due date for filing his notice of appeal. This court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from felony conviction may be sought by filing a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07).

A late notice of appeal may be considered timely so as to invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time 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). When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id. In this case, neither the notice of appeal nor the motion for extension of time was timely filed.

This appeal is therefore dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH