Jose Carmona v. The State of Texas--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JOSE CARMONA,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-04-00019-CR

Appeal from the

109th District Court

of Andrews County, Texas

(TC#4077)

MEMORANDUM OPINION

This is an attempted appeal from Jose Carmona=s conviction on three counts of aggravated sexual assault of a child and two counts of indecency with a child. Appellant was found guilty and sentenced by a jury to ten years in prison on the first count, and five years in prison each on the remaining counts. The issue before us is whether appellant timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.

The record before us reflects that sentence was imposed in open court on October 9, 2003. Appellant filed a motion for new trial on October 31, 2003. His notice of appeal was filed on January 26, 2004. By letter dated January 28, 2004, we notified appellant in writing of our intent to dismiss this appeal for want of jurisdiction. On February 20, 2004, he filed a motion for extension of time to file notice of appeal.

A timely notice of appeal is necessary to invoke this Court=s jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Tex. R. App. P. 26.2(a) prescribes the time period in which notice of appeal must be filed by the defendant in a criminal case. A defendant=s notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. Pursuant to Rule 26.3, a court of appeals may grant an extension of time to file notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time. Tex. R. App. P. 26.3; Olivo, 918 S.W.2d at 522. Under Rule 26.3, 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. Olivo, 918 S.W.2d at 522.

When a defendant appeals from a conviction in a criminal case, the time to file notice of appeal runs from the date sentence is imposed or suspended in open court, not from the date sentence is signed and entered by the trial court. Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993). As Carmona filed a motion for a new trial, the last date allowed for timely filing of the notice of appeal was January 7, 2004, ninety days after the day the sentence was imposed in open court. Tex. R. App. P. 26.2(a)(2).

Because appellant did not file his notice of appeal until January 26, 2004, and did not file his motion for extension of time to file notice of appeal until February 20, 2004, he failed to perfect this appeal. Accordingly, we dismiss the appeal for want of jurisdiction. As we have no jurisdiction, we have no authority to act upon his motion for extension of time to file notice of appeal and motion to appoint counsel and to proceed in forma pauperis. They are dismissed.

The proper remedy to obtain an out-of-time appeal is to file a petition for writ of habeas corpus returnable to the Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004).

SUSAN LARSEN, Justice

April 1, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)