Derek Mountain v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00595-CR

Derek MOUNTAIN,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2000-CR-5496-C

Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 8, 2003

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on March 25, 2003. Appellant filed his motion for new trial on April 24, 2003, which was denied by operation of law. Therefore, appellant's notice of appeal was due to be filed on June 23, 2003. Tex. R. App. P. 26.2(a)(2). A motion for extension of time to file the notice of appeal was due on July 8, 2003 Tex. R. App. P. 26.3. Appellant filed his motion for extension of time and a notice of appeal on August 8, 2003.

On September 8, 2003, we ordered appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's counsel filed a response asserting that the due date for the notice of appeal was September 8, 2003 because the judgment did not become final until after his motion for new trial was overruled. Texas Rule of Appellate Procedure 26.2(a) states as follows: "The notice of appeal must be filed . . . within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." Tex. R. App. P. 26.2(a)(2) (emphasis added). Sentence was imposed here on March 25, 2003, ninety days from which was June 23, 2003.

Appellant's counsel also asserts that any delay in timely filing a motion for extension of time or the notice of appeal should be excused pursuant to Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997). The Court of Criminal Appeals has held as follows: "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. 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." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (citation omitted); see Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that rationale in Olivo is still valid).

Therefore, this court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo, 918 S.W.2d at 522; 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, 243 (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). Accordingly, this appeal is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH