Carlos Faz v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00364-CR
Carlos FAZ,
Appellant
v.
STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-6096
Honorable Fred Shannon, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and filed: July 28, 2004

DISMISSED FOR LACK OF JURISDICTION

Appellant Carlos Faz's sentence was imposed April 14, 2004. A motion for new trial or notice of appeal was due May 13, 2004. See Tex. R. App. P. 26.2. The clerk's record does not contain a motion for new trial. A motion for extension of time to file the notice of appeal was due in this court May 28, 2004. See Tex. R. App. P. 26.3. A motion for extension of time was filed May 24, 2004, but it was filed in the trial court, not in this court as required by Rule 26.3(b). See Tex. R. App. P. 26.3(b). A motion for extension of time filed in the trial court is not effective to extend the time for filing the notice of appeal. See Tex. R. App. P. 26.3(b); Moreno v. State, 954 S.W.2d 97, 97 (Tex. App.-San Antonio 1997, no pet.) (motion for extension of time to file notice of appeal in criminal case must be filed in the appellate court); Jones v. State, 900 S.W.2d 421, 423 (Tex. App.-Texarkana 1995, no pet.). Because the motion for extension of time was not effective to extend the deadline, the notice of appeal was due May 13, 2004. The notice of appeal was not filed until May 24, 2004.

On June 17, 2004, we issued a show cause order to appellant. Appellant replied that he was convinced by counsel not to file an appeal, and by the time he realized his mistake, the appeal was late. Appellant moves this court to reinstate his late filed notice of appeal.

Because the notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the appeal. See Moreno, 954 S.W.2d at 97; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that the writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). Accordingly, we dismiss Carlos Faz's appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH