Michael Anthony Tovar v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00686-CR
Michael Anthony TOVAR,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-7540
Honorable Phil Chavarria, Jr., Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 8, 2004

DISMISSED FOR WANT OF JURISDICTION

Appellant was sentenced on August 25, 2004. Because appellant did not file a motion for new trial, his notice of appeal was due to be filed on September 24, 2004. Tex. R. App. P. 26.2(a)(1). The notice of appeal was not filed until September 29, 2004. A motion for extension of time to file a notice of appeal was due to be filed on October 11, 2004. Tex. R. App. P. 26.3. No motion for extension was filed.

Appellant responded to this court's order issued November 5, 2004, for appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant requests that the court deem the appellant's pro se notice of appeal to include a motion for extension. The argument that a notice of appeal filed within the fifteen-day grace period implies a motion for extension of time has been rejected. See Olivo v. State, 918 S.W.2d 519, 521-22 (Tex. Crim. App. 1996). It is well established that when a notice of appeal and a motion for extension of time are not filed within the fifteen-day grace period, the appellate court lacks jurisdiction. Tex. R. App. P. 26.3; Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (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DO NOT PUBLISH