Javier Valdez v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00287-CR
Javier VALDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-0420-W
Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 18, 2003

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

On May 6, 2003, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. On May 14, we extended the time for appellant to respond. No response has been filed.

Although appellant timely filed a motion for leave to file the notice of appeal, there is no record that he ever filed a notice of appeal. In order to extend the time for filing the notice of appeal in a criminal case, both the notice of appeal and a motion for extension of time must be filed within fifteen days of the deadline for filing the notice of appeal. Tex. R. App. P. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (explaining that both the notice of appeal and the motion for extension of time must be filed within the fifteen-day extension); Jones v. State, 900 S.W.2d 421, 423 (Tex. App.-Texarkana 1995, no pet.) (filing requirements are jurisdictional). This court has previously held that the appellant must file an independent notice of appeal. The filing of a motion for appointment of counsel is not a substitute for an independent notice of appeal. See Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.-San Antonio 1996, no pet.). Because the notice of appeal in this case was not filed, we lack jurisdiction to entertain the appeal. See Olivo, 918 S.W.2d at 522. (1)Accordingly, we dismiss Valdez's appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH

1. Appellant may, of course, pursue an out-of-time appeal by filing an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art 11.07; Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991).