David A. Villanueva v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

MEMORANDUM OPINION
No. 04-03-00064-CR
David A. VILLANUEVA,
Appellant
v.
The STATE of Texas,
Appellee

From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 818932
Honorable Wayne A. Christian, II, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 26, 2003

DISMISSED FOR LACK OF JURISDICTION

The trial court revoked Appellant David A. Villanueva's probation and imposed sentence on November 7, 2002. Villanueva did not file a motion for new trial. Thus, the notice of appeal was due December 9, 2002, or the notice, together with a motion for extension of time to file, were due December 24, 2002. Tex. R. App. P. 26.2(a)(1), 26.3. The record contains a notice of appeal file stamped December 23, 2002 and postmarked December 19. Villanueva did not file a motion for extension of time to file the notice of appeal. See Tex. R. App. P. 26.3.

Because the notice of appeal in this case was not timely filed, we ordered appellant to show cause why the appeal should not be dismissed for lack jurisdiction. Villanueva's recently appointed appellate counsel filed a response, together with Villanueva's affidavit, arguing that the notice of appeal was not timely filed because Villanueva did not receive effective assistance of counsel during a critical stage of the proceeding. As counsel concedes, the facts upon which the argument is based do not appear in the appellate record.

This court does not have jurisdiction to consider an appeal that was not timely filed. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Villanueva's remedy is to seek an out-of-time appeal by filing an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. arts. 11.05, 11.09 (Vernon 1977); Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554 (Tex. Crim. App. 1989); State ex rel. Rodriguez v. Onion, 741 S.W.2d 433 (Tex. Crim. App. 1987). Accordingly, we dismiss this appeal for want of jurisdiction.

PER CURIAM

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