Jesus Jaime Jimenez v. The State of Texas--Appeal from 216th Judicial District Court of Kerr County

MEMORANDUM OPINION

No. 04-06-00399-CR

Jesus Jaime JIMENEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. B91-53

Honorable Emil Karl Prohl, Judge Presiding

PER CURIAM

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: June 20, 2007

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on March 6, 2006. Because appellant filed a motion for new trial on March 16, 2006, the notice of appeal was due to be file June 5, 2006. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on June 20, 2006, but none was filed. Tex. R. App. P. 26.3. Appellant filed his notice of appeal on June 8, 2006.

On May 21, 2007, we ordered appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's counsel filed a response asserting the possibility that appellant's sentence was pronounced on April 28, 2007, and therefore, the notice of appeal would be timely. Texas Rule of Appellate Procedure 26.2(a) states as follows: "The notice of appeal must be filed . . . within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." Tex. R. App. P. 26.2(a)(2) (emphasis added). Sentence was imposed here on March 6, 2006, ninety days from which was June 5, 2007. When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (citation omitted); see Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that rationale in Olivo is still valid). Here, appellant did not file a motion for extension of time.

This court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo, 918 S.W.2d at 522; 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). Accordingly, this appeal is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH