Leobardo Macias v. The State of Texas--Appeal from 81st Judicial District Court of Karnes County
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i i i i i i MEMORANDUM OPINION No. 04-08-00661-CR Leobardo MACIAS, Appellant v. The STATE of Texas, Appellee From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 07-12-00177-CRK Honorable Ron Carr, Judge Presiding PER CURIAM Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice Delivered and Filed: October 29, 2008 DISMISSED FOR WANT OF JURISDICTION Appellant was sentenced on May 14, 2008. A timely motion for new trial having been filed, appellant s notice of appeal was due to be filed no later than August 12, 2008. See TEX . R. APP . P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on August 27, 2008. TEX . R. APP . P. 26.3. Appellant s notice of appeal was filed on August 19, 2008. No motion for extension of time to file a notice of appeal was filed. See TEX . R. APP . P. 26.3. This court issued an order on October 1, 2008 directing appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. On October 8, 2008, appellant s counsel 04-08-00661-CR filed a written response requesting an extension of time for filing the notice of appeal until August 19, 2008, the date it was file-stamped; counsel also attached written proof that the notice of appeal was mailed by certified mail on August 13, 2008. Because appellant s notice of appeal was not deposited in the mail on or before the last day for filing, i.e., August 12, 2008, it was not timely filed under Rule 9.2(b)(1). TEX . R. APP . P. 9.2(b)(1). Further, the appellate court may not extend the time to file a notice of appeal unless a motion for extension of time is filed in the appellate court within fifteen (15) days after the deadline for filing the notice of appeal. See TEX . R. APP . P. 26.3. As noted, appellant did not file a motion for extension within the fifteen-day grace period. When a notice of appeal and a 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). Accordingly, the appeal is dismissed for lack of jurisdiction. PER CURIAM DO NOT PUBLISH -2-
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