Gary Tello v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00833-CR

Gary TELLO,

Appellant

v.

The STATE of Texas,

Appellee

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

Trial Court No. 2004-CR-1087W

Honorable Mark Luitjen, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 21, 2005

DISMISSED FOR WANT OF JURISDICTION

Appellant was sentenced in this case on April 26, 2005. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed in the trial court no later than May 26, 2005. Tex. R. App. P. 26.2. On May 10, 2005, appellant filed a notice of appeal in this court; however, the notice of appeal was not filed in the trial court until November 14, 2005, and no motion for extension of time was filed.

A notice of appeal timely but mistakenly filed in the court of appeals is not deemed timely filed in the trial court. See Douglas v. State, 987 S.W.2d 605, 606 (Tex. App. Houston [1st Dist.] 1999, no pet.); compare Tex. R. App. P. 25.1(a) (rule applicable to civil appeals deeming notice of appeal mistakenly filed with appellate court as having been filed with the trial court clerk on the same day) with Tex. R. App. P. 25.2 (rule applicable to criminal appeals containing no similar provision). The absence of a timely notice of appeal deprives this court of jurisdiction in this case. See Douglas, 987 S.W.2d at 606. Accordingly, the appeal is dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH