Alberto Javier Ortiz v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00904-CR

Alberto Javier ORTIZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-1736C

Honorable Mark R. Luitjen, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 28, 2004

DISMISSED FOR LACK OF JURISDICTION

Pursuant to a plea bargain agreement, appellant, Alberto Javier Ortiz, pled nolo contendere to aggravated robbery. On June 9, 2003, the trial court imposed sentence and signed a certification of defendant's right to appeal stating that this "the defendant has NO right of appeal." See Tex. R. App. P. 25.2(a)(2). After appellant filed his notice of appeal, the court clerk sent copies of the certification and notice of appeal to this court. See Tex. R. App. P. 25.2(e). Appellant filed a pro se general notice of appeal. See Tex. R. App. P. 25.2(a)(2).

Because appellant did not file a motion for new trial, the notice of appeal was due to be filed on July 9, 2003. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on July 24, 2003. Tex. R. App. P. 26.3. Appellant did not file a motion for extension of time to file a notice of appeal, and he filed his notice of appeal on August 21, 2003. Furthermore, the clerk's record contains a written plea bargain agreement, and the punishment assessed did not exceed the punishment recommended by the State and agreed to by the appellant. See Tex. R. App. P. 25.2(a)(2). Rule 25.2(d) provides, "The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules." Tex. R. App. P. 25.2(d).

On December 22, 2003, we ordered appellant to show cause why his appeal should not be dismissed. On January 5, 2004, appellant's counsel filed a response explaining he was not aware that appellant had filed a pro se 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, 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). This appeal is therefore dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH