David Strzelczyk v. State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00881-CR

No. 04-00-00882-CR

David STRZELCZYK,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court Nos. 1998-CR-5822 & 1998-CR-5500

Honorable Mark Luitjen, Judge Presiding

PER CURIAM

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Catherine Stone, Justice

Delivered and Filed: May 23, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on September 12, 2000. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed on October 12, 2000. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on October 27, 2000. Tex. R. App. P. 26.3. Appellant filed a pro se motion for extension of time to file a notice of appeal on December 28, 2000 and his notice of appeal on February 13, 2001. On March 28, 2001, this court issued an order (1) denying appellant's pro se motion for extension of time because appellant is represented by court-appointed counsel on appeal, and is not entitled to "hybrid representation;" and (2) directing appellant to show cause in writing by April 26, 2001 why this appeal should not be dismissed for lack of jurisdiction.

On April 23, 2001, appellant filed a pro se motion stating he has been unable to reach his appointed counsel, Mr. Jeff Williams; asking this court to remove Mr. Williams as his attorney and appoint new counsel; and asking for an extension of time to respond to the March 28th show cause order. Appellant's pro se motions were denied. On May 2, 2001, this court ordered Mr. Williams to respond to this court's order of March 28th. On May 10, 2001, Mr. Williams responded, conceding that this court does not have jurisdiction. Mr. Williams also filed a motion to withdraw as appellant's appellate counsel.

This court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from felony conviction may be sought by filing a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07). This appeal is therefore dismissed for lack of jurisdiction. Counsel's motion to withdraw is granted.

PER CURIAM

DO NOT PUBLISH