Jacob Brian Gamez v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-01-00074-CR
Jacob B. GAMEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-1229
Honorable Robert R. Barton, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: March 30, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on November 13, 2000, and appellant, Jacob Brian Gamez, did not file a motion for new trial. Thus, the notice of appeal was due December 13, 2000, or the notice, together with a motion for extension of time to file, were due fifteen days later on December 28, 2000. Tex. R. App. P. 26.2(a)(1), 26.3. Appellant did not file a timely notice of appeal or motion for extension of time; however, on January 19, 2001, he filed a notice of appeal together with a motion for leave to file it late. Accordingly, after reviewing the clerk's record, this court issued an order that appellant show cause, no later than February 26, 2001, why the appeal should not be dismissed for lack of jurisdiction. On February 20, 2001, appellant's retained trial counsel filed a notice of nonrepresentation pursuant to Rule 6.4(a) of the Texas Rules of Civil Procedure. No response to our show cause order was filed by counsel or appellant.

Because appellant is without counsel on appeal, on March 5, 2001, we abated the appeal and remanded the case to the trial court to conduct a hearing and make findings regarding appellant's indigence and his desire to prosecute the appeal, and to appoint appellate counsel, if warranted. After a hearing, the trial court found appellant no longer desires to prosecute this appeal. Thereafter, Gamez filed a pro se motion to dismiss the appeal. We reinstate this appeal on the docket of the court.

Because the notice of appeal and motion for leave to file a late notice of appeal were 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 Gamez's motion for leave to file his untimely notice of appeal and his pro se motion to dismiss for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH