Opinion
No. 4-05-00849-CR
Delivered and Filed: February 8, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 7, Bexar County, Texas, Trial Court No. 935372, Honorable Monica Guerrero, Judge Presiding. Dismissed for Lack of Jurisdiction.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
After the trial court suspended sentence on September 12, 2005, Charles Lee Bradley did not move for a new trial. Therefore, his notice of appeal was due October 12, 2005; or the notice and a motion for extension of time to file were due fifteen days later on October 27, 2005. Tex.R.App.P. 26.2(a)(1), 26.3. Although Bradley's pro se notice of appeal contains a certificate of service stating he mailed the appeal on September 28, 2005, it was not filed until October 13, 2005. Bradley did not file a timely motion for extension of time to file the notice. See Tex.R.App.P. 26.3. It is well-settled that to invoke our jurisdiction, an appellant must file a timely notice of appeal. State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000). We therefore notified Bradley that his appeal appeared to be subject to dismissal for want of jurisdiction and gave him the opportunity to show cause why his appeal should not be dismissed. Rather than providing us with proof that he in fact mailed his notice of appeal on the day alleged in his certificate of service, Bradley instead filed a response exclaiming his innocence. However, a claim of innocence is not a valid, legal basis for this Court to acquire jurisdiction when a notice of appeal has not been timely filed. Because the notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Bradley's remedy is to seek an out-of-time appeal by filing an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. arts. 11.05, 11.09 (Vernon 2005); Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554 (Tex.Crim.App. 1989); State ex rel. Rodriguez v. Onion, 741 S.W.2d 433 (Tex.Crim.App. 1987). Accordingly, we dismiss this appeal for want of jurisdiction.