Delio Pena v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00669-CR
Delio PENA,
Appellant
v.
STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-9423
Honorable Sid L. Harle, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and filed: December 29, 2004

DISMISSED FOR LACK OF JURISDICTION

Appellant Delio Pena's sentence was suspended August 5, 2004. A motion for new trial or notice of appeal was due September 6, 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 September 21, 2004, see Tex. R. App. P. 41(b)(2), but no such motion has been filed. The notice of appeal was not filed until September 16, 2004. On October 11, 2004, we ordered appellant to show cause no later than October 25, 2004, why this case should not be dismissed for lack of jurisdiction. Appellant did not respond to our show cause order.

Because the notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (explaining that both the notice of appeal and the motion for extension of time must be filed within the fifteen-day extension); 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 Delio Pena's appeal for lack of jurisdiction.

PER CURIAM

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