Opinion
No. 04-05-00191-CR
Delivered and Filed: May 11, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 8, Bexar County, Texas, Trial Court No. 874055, Honorable Karen Crouch, Judge Presiding. Dismissed for Lack of Jurisdiction.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
The trial court imposed sentence on December 7, 2004. Because appellant filed a motion for new trial on January 4, 2005, the notice of appeal was due to be filed on March 7, 2005. Tex.R.App.P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on March 22, 2005. Tex.R.App.P. 26.3. Appellant filed a motion for extension of time and notice of appeal on March 30, 2005. On April 13, 2005, we ordered appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's counsel filed a Motion to Extend Time to File Defendant's Notice of Appeal and a Motion to Show Cause Why Appellant's Appeal Should Not Be Dismissed For Lack of Jurisdiction. Counsel explains that she waited until the trial court ruled on the motion for new trial before filing the notice of appeal. Texas Rule of Appellate Procedure 26.2(a) states as follows: "The notice of appeal must be filed . . . within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." Tex.R.App.P. 26.2(a)(2) (emphasis added). "[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). Accordingly, this court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991) (out-of-time appeal from felony conviction may be sought by filing a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07). Here, sentence was imposed on December 7, 2004, ninety days from which was March 7, 2004. Appellant did not timely file his notice of appeal or motion for extension of time. Therefore, this appeal is dismissed for lack of jurisdiction. Appellant's Motion to Extend Time to File Defendant's Notice of Appeal is denied.