Rafael M. Villarreal v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

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MEMORANDUM OPINION No. 04-10-00838-CR Rafael M. VILLARREAL, Appellant v. The STATE of Texas, Appellee From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2008CR10755 Honorable Maria Teresa Herr, Judge Presiding PER CURIAM Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice Delivered and Filed: December 22, 2010 DISMISSED FOR LACK OF JURISDICTION The trial court imposed sentence in the underlying cause on November 20, 2009. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed December 21, 2009. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on January 5, 2010. TEX. R. APP. P. 26.3. Appellant filed a notice of appeal on November 22, 2010, and filed a motion to extend time to file the notice of appeal on November 23, 2010. 04-10-00838-CR A timely notice of appeal is necessary to invoke a court of appeals jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be considered timely so as to invoke a court of appeals jurisdiction if: (1) it is filed within fifteen days of the last day allowed for filing; (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal; and (3) the court of appeals grants the motion for extension of time. See id. In this case, none of the deadlines were met. Because the notice of appeal was untimely, this appeal is dismissed for lack of jurisdiction. See id.; see also 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). PER CURIAM DO NOT PUBLISH -2-

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