Opinion
No. 04-04-00872-CR
Delivered and Filed: May 25, 2005. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-7240, Honorable Pat Priest, Judge Presiding. Dismissed for Lack of Jurisdiction.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Appellant was sentenced on August 20, 2004. A timely motion for new trial having been filed, appellant's notice of appeal was due to be filed no later than November 18, 2004. See Tex.R.App.P. 26.2. On August 30, 2004, the appellant filed a notice of appeal in this court; however, the notice of appeal was not filed in the trial court until December 3, 2004, 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 (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). Appellant's appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), acknowledging the jurisdictional defect. "When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction." See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996); Shute v. State, 744 S.W.2d 96, 97 (Tex.Crim.App. 1988); see also 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). Accordingly, the appeal is dismissed for lack of jurisdiction. Because we have no jurisdiction to consider the appeal, appellant's second motion for extension of time to file brief and the motion to withdraw from frivolous appeal filed by appellant's appointed attorney also are dismissed for lack of jurisdiction.