Michael Scott McKinney v. State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-00-00863-CR

Michael Scott McKINNEY,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-3366
Honorable Sharon MacRae, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: February 7, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on October 9, 2000, and appellant Michael McKinney did not file a motion for new trial. Thus, the notice of appeal was due November 8, 2000, or the notice, together with a motion for extension of time, were due November 27, 2000. Tex. R. App. P. 26.2(a)(1), 26.3. McKinney did not timely file a notice of appeal or motion for extension of time to file a notice of appeal.

On November 29, 2000, McKinney filed an application for writ of habeas corpus, contending he had lost his right to appeal due to the ineffective assistance of counsel. The record does not reflect any action taken on the application. However, on December 11, 2000, McKinney filed a motion requesting the trial court to deem his application for writ of habeas corpus to be a notice of appeal. On December 13, the trial court granted the motion and ordered the trial court clerk to accept the application filed November 29 as a notice of appeal.

Assuming McKinney's November 29, 2000 filing in the trial court were considered to be both a notice of appeal and a motion for extension of time, the document was filed after the deadline for filing a motion for extension of time. See Tex. R. App. P. 26.3.

Because a notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). Accordingly, we dismiss this appeal for want of jurisdiction.

PER CURIAM

DO NOT PUBLISH