Andre Stokes v. The State of Texas--Appeal from County Criminal Court No. 2 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANDRE STOKES, )

) No. 08-06-00004-CR

Appellant, )

) Appeal from the

v. )

) County Criminal Court at Law #2

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 2005C12862)

)

O P I N I O N

Appellant Andre Stokes attempts to appeal from a conviction for the offense of criminal trespass. Appellant received an original sentence of 120 days confinement, with credit for time served, and was required to pay court costs of $236.

In this case, the trial court imposed sentence on October 20, 2005. To preserve his right to appeal, Appellant was required to file either a notice of appeal or a motion for new trial by November 19, 2005. See Tex.R.App.P. 21.4(a), 26.2(a). Appellant filed a pro se notice of appeal which indicates it was filed on December 24, 2005, but was actually file stamped on December 29, 2005. In either case, the notice of appeal was untimely. The timely filing of a notice of appeal is a prerequisite to invoke our jurisdiction. Because Appellant=s notice of appeal was untimely, we lack jurisdiction over his appeal.

Additionally, trial counsel filed a motion to withdraw at some stage of these proceedings which was granted by the trial court on January 18, 2006. Trial counsel has also filed a motion to withdraw with this Court due to a conflict with Appellant. Because we lack jurisdiction, we must dismiss the appeal.[1] The motion to withdraw as attorney of record is denied as moot.

February 9, 2006

DAVID WELLINGTON CHEW, Justice

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

(Do Not Publish)

[1] The appropriate vehicle for obtaining an out of time appeal is by writ of habeas corpus. See Tex.Code Crim.Proc.Ann. '' 11.05, 11.09 (Vernon 2005).