Jose Sanchez v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00739-CR

Jose SANCHEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 226th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-2817

Honorable Sid Harle, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 9, 2005

DISMISSED FOR LACK OF JURISDICTION

Jose Sanchez was sentenced on August 15, 2005. Because Sanchez did not file a timely motion for new trial, his notice of appeal was due to be filed no later than September 14, 2005. Tex. R. App. P. 26.2. Sanchez did not file his notice of appeal until October 3, 2005. His motion for extension of time to file his notice of appeal was due on September 29, 2005. Tex. R. App. P. 26.3. Sanchez did not file his motion for extension of time until October 3, 2005.

[A] late notice of appeal may be considered timely so as to invoke a court of appeals jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Neither Sanchez s notice of appeal nor his motion for extension of time was filed within fifteen days of the last day allowed for filing.

Accordingly, although Sanchez attempts in his motion for extension of time to convince this court to consider his late appeal by arguing that he lacked advice of counsel, he must present this argument to the Texas Court of Criminal Appeals in seeking an out-of-time appeal. Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (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). This court is without jurisdiction to grant such relief. Accordingly, Sanchez s motion and this appeal are dismissed for lack of jurisdiction.

PER CURIAM

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