Benjamin J. Jones v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00189-CR
Benjamin J. JONES,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-0457W
Honorable Bert Richardson, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 19, 2004

DISMISSED FOR WANT OF JURISDICTION

Appellant was sentenced on January 29, 2004. Because appellant's motion for new trial was filed late, the notice of appeal was due to be filed no later than March 1, 2004. Tex. R. App. P. 26.2. A motion for extension of time to file the notice of appeal was timely filed on March 15, 2004. Tex. R. App. P. 26.3. However, appellant failed to file a notice of appeal in the trial court. Tex. R. App. P. 26.3(a). The notice of appeal must be an independent document separate from the motion for extension to file late notice of appeal. See Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.--San Antonio 1996, no pet.).

Appellant has not responded to this court's order issued April 8, 2004, for appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. When a notice of appeal and motion for extension of time are not filed within the fifteen-day grace period, the appellate court lacks jurisdiction. Tex. R. App. P. 26.3; 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, 243 (Tex. Crim. App. 1991) (out-of-time appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure). The appeal is dismissed for lack of jurisdiction.

PER CURIAM

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