William Martinez v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-01-00093-CR
William MARTINEZ,
Appellant
v.
STATE of Texas ,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-4390
Honorable Mary Roman, Judge Presiding

PER CURIAM

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 28, 2001

APPEAL DISMISSED FOR LACK OF JURISDICTION

Appellant's sentence was imposed November 15, 1999. The motion for new trial or notice of appeal was due December 15, 1999. See Tex. R. App. P. 26.2. The clerk's record does not contain a motion for new trial. A motion for extension of time to file the notice of appeal was due in this court December 30, 1999. See Tex. R. App. P. 41(b)(2). No motion for extension of time was filed. Appellant filed his pro se notice of appeal January 16, 2001. (1)

Because the notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (explaining both the notice of appeal and the motion for extension of time must be filed within the fifteen-day extension). (2)

Accordingly, we dismiss the appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH

1. Appellant's former attorney advised the court she knew nothing about appellant's pro se appeal. We recognize counsel's responsibility ended when appellant decided not to pursue a direct appeal after sentencing and the conviction became final.

2. We ordered appellant to show cause why the appeal should not be dismissed. He responded there is new evidence which he feels warrants an appeal at this late date. The appropriate vehicle for obtaining an out-of-time appeal from a final felony conviction is by writ of habeas corpus 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, 576 (Tex. App.-San Antonio 1991, no pet.).