Ex Parte Ray Anthony Byrd--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00632-CR
Ex Parte Ray Anthony Byrd, Appellant
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 62759-C, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
PER CURIAM

Before us is appellant's motion for extension of time to file notice of appeal. The motion states that appellant filed his application for writ of habeas corpus in the district court on July 10, 1997. Attached to the motion is an order of the court signed August 14, 1997, recommending that relief be denied. (1) Appellant had thirty days from that date to perfect his appeal, subject to a fifteen-day extension period. See former Tex. R. App. P. 41(b)(1), (2).

Under rule 41(b)(2), it was necessary for appellant to file both his notice of appeal in the district court and his motion for extension of time in this Court within the fifteen-day grace period. In this case, the deadline was September 29, 1997. Appellant's motion states that he filed his notice of appeal on September 29, but the copy of the notice attached to the motion does not bear a file mark and we are informed that the district clerk has no record of such notice. In any event, appellant's motion for extension of time was not received and filed by this Court until October 9, after the fifteen-day grace period had expired.

The motion for extension of time to file notice of appeal is overruled as untimely. The appeal is dismissed for want of jurisdiction.

 

Before Chief Justice Carroll, Justices Jones and Kidd

Dismissed for Want of Jurisdiction

Filed: November 6, 1997

Do Not Publish

1. The State and the district court treated the writ application as one invoking article 11.07. Tex. Code Crim. Proc. Ann. art. 11.07, 3 (West Supp. 1997). It appears, however, that appellant was proceeding under articles 11.01, 11.05, 11.22, and 11.23. Id. arts. 11.01, .05, .22, .23 (West 1977); see Ex parte Renier, 734 S.W.2d 349, 353 (Tex. Crim. App. 1987).