Rafael Angel Maldonado v. The State of Texas--Appeal from 205th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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RAFAEL ANGEL MALDONADO, ) No. 08-05-00330-CR

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Appellant, ) Appeal from

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v. ) 205th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 980D10288)

MEMORANDUM OPINION

Rafael Angel Maldonado attempts to appeal his conviction for aggravated sexual assault of a child. Finding that Appellant has not timely filed his notice of appeal or a motion for extension of time, we dismiss the appeal.

The record before us reflects that sentence was imposed in open court on July 19, 2005. Appellant did not file a motion for new trial. He filed notice of appeal on September 30, 2005. By letter dated October 10, 2005, we notified Appellant in writing of our intent to dismiss this appeal for want of jurisdiction. Appellant responded by filing a motion for out-of-time 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). Appellant s notice of appeal was due to be filed on August 18, 2005, thirty days after the day sentence was imposed in open court. See Tex.R.App.P. 26.2(a)(1). 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. Because Appellant did not file his notice of appeal until September 30, 2005, and he failed to file a motion for extension of time, he failed to perfect the appeal. This Court does not have jurisdiction to grant Appellant s motion for out-of-time appeal as this is a matter which falls within the exclusive jurisdiction of the Court of Criminal Appeals. See Tex.Code Crim.Proc.Ann. art. 11.07 (Vernon 2005). Accordingly, we dismiss the appeal for want of jurisdiction.

December 8, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)