Allison T. Apt v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00885-CR
Allison T. APT,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-5840A
Honorable Philip A. Kazen, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: April 7, 2004

DISMISSED FOR LACK OF JURISDICTION

Appellant's sentence was imposed on October 8, 2003. No motion for new trial was filed; accordingly, appellant's notice of appeal was due to be filed on November 7, 2003. Tex. R. App. P. 26.2. Appellant's notice of appeal was mailed to the district clerk's office in an envelope post-marked October 29, 2003. Appellant also mailed a copy of her notice of appeal to this court in an envelope post-marked October 29, 2003. This court received and filed the notice of appeal on October 30, 2003. The notice of appeal was not file-stamped by the district clerk until November 21, 2003. (1)

Documents filed by mail are considered timely filed if deposited in the mail on or before the last day for filing if the document is received within ten days after the filing deadline. See Tex. R. App. P. 9.2(b). In this case, the post-mark shows that the notice of appeal was mailed on or before the last day for filing; however, the notice of appeal was not file-stamped as being received within the ten days allowed. Accordingly, the notice of appeal cannot be deemed timely filed by mail.

Rule 25.1 of the Texas Rules of Appellate Procedure provides that a notice of appeal filed with an appellate court in a civil case is deemed to have been filed the same day with the trial court clerk; however, no similar rule exists for criminal cases. Compare Tex. R. App. P. 25.1(a) with Tex. R. App. P. 25.2(c)(1). Because the notice of appeal in this case was not timely filed with the trial court clerk, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605 (Tex. App.--Houston [1st Dist.] 1999, no pet.); see also Bourgeois v. State, No. 01-03-00081-CR, 2003 WL 1849178, *1 (Tex. App.--Houston [1st Dist.] Apr. 10, 2003, no pet.) (not designated for publication). Appellant responded to our order, stating the issues she desired to raise on appeal. Because appellant's notice of appeal was not timely filed, however, we do not have jurisdiction to consider the issues. Although we agree that our inability to retain jurisdiction of this appeal appears inherently unfair, appellant should be able to obtain relief by seeking an out of time appeal from the Texas Court of Criminal Appeals. Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991)(out-of-time appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure).

The appeal is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH

1. After further inquiry, we discovered that the notice of appeal was originally sent to the 227th Judicial District Court since the court number and trial judge's name were on the envelope. It appears that there was a delay in forwarding the notice of appeal from the 227th Judicial District Court to the Bexar County District Clerk's office, which file-stamps the documents.