Michael Jyrod Lowry v. The State of Texas--Appeal from 104th District Court of Taylor County

Opinion filed June 28, 2007

In The

Eleventh Court of Appeals

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   No. 11-07-00147-CR

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   MICHAEL JYROD LOWRY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 16202-B

O P I N I O N

The trial court convicted Michael Jyrod Lowry of possession of cocaine with the intent to deliver and assessed his punishment at confinement for twenty years. The sentence was imposed in open court on December 27, 2006. A motion for new trial was filed, and appellant filed his notice of appeal on May 23, 2007.

On June 6, 2007, the clerk of this court wrote the parties stating that the notice of appeal appeared to be out of time and requesting that appellant respond by June 21, 2007, showing grounds for continuing the appeal. Counsel has responded to the June 21 letter.

In his response, counsel contends that the pro se motion for new trial that was prematurely filed on November 29, 2006, was not only a motion for new trial but also appellant=s notice of appeal. We disagree. In reviewing the pro se motion for new trial, we note that appellant s sole request for relief was a new trial. Appellant alleged that his trial counsel was ineffective in great detail and cited both federal and state law to support his claim that he was entitled to a new trial. TEX. R. APP. P. 25.2(c)(2) provides that a document is sufficient as a notice of appeal if the document shows the party s desire to appeal. The November 29 motion for new trial shows only a desire for a new trial and no desire for an appeal.

Pursuant to Tex. R. App. P. 25.2(b), an appeal is perfected by the timely filing of a sufficient notice of appeal. In this case, appellant=s notice of appeal was due to be filed within ninety days from the date his sentence was imposed in open court. Tex. R. App. P. 26.2(b). Absent a timely notice of appeal or compliance with TEX. R. APP. P. 26.3, this court lacks jurisdiction to entertain an appeal. Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988). Appellant may be able to secure an out-of-time appeal by filing a post-conviction writ pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005).

The appeal is dismissed for want of jurisdiction.

PER CURIAM

June 28, 2007

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.