Felix G. Guevara v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-98-00843-CR
Felix G. GUEVARA,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 95-CR-3992-A
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 25, 1998

DISMISSED FOR LACK OF JURISDICTION

Appellant was sentenced in the above numbered cause on June 8, 1998. A motion for new trial was filed; thus, the notice of appeal was due to be filed no later than September 7, 1998. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on September 22, 1998. Tex. R. App. P. 26.3. Appellant filed notice of appeal on September 8, 1998. A motion for extension of time was not filed.

On October 29, 1998, we ordered appellant to show cause why his appeal should not be dismissed for want of jurisdiction. In response, appellant argues his notice of appeal is timely because the ninetieth day after sentence was imposed was September 8, 1998. We disagree.

Rule 4.1 of the Texas Rules of Appellate Procedure instructs that when computing time provisions:

The day of an act, event, or default after which a designated period begins to run is not included when computing a period prescribed or allowed by these rules . . . . The last day of the period is included, but if that day is a Saturday, Sunday or legal holiday, the period extends to the end of the next days that is not a Saturday, Sunday or legal holiday.

Here, sentence was imposed on June 8, 1998. Appellant's time period therefore began running on June 9, 1998. The ninetieth day thereafter was Sunday September 6, 1998. Thus, appellant's notice of appeal was due to be filed on Monday September 7, 1998. See Tex. R. App. P. 4.1, 26.2(a)(1). A motion for extension of time was not filed. Accordingly, appellant's notice of appeal is untimely.

This court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. See Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988). Because the notice of appeal in this case was not timely filed, this court lacks jurisdiction to entertain the appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (explaining that both notice of appeal and motion for extension of time must be filed within fifteen-day extension). The appropriate vehicle for obtaining an out-of-time appeal from a final felony conviction is by writ of habeas corpus to the Court of Criminal Appeals pursuant to article 11.07 of the Texas Code of Criminal Procedure. Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991); Charles v. State, 809 S.W.2d 574 (Tex. App.--San Antonio 1991, no pet.).

The appeal is dismissed for lack of jurisdiction. Appellant also filed a motion for extension of time to file his brief. Because we do not have jurisdiction to entertain the appeal, we also lack jurisdiction to rule upon this motion. Therefore, the motion for extension of time to time appellant's brief is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH

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