Opinion
No. 06-06-00061-CR
Submitted: April 11, 2006.
Decided: April 12, 2006. DO NOT PUBLISH.
On Appeal from the 354th Judicial District Court, Hunt County, Texas, Trial Court No. 22,221.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Anthony Deleon, Sr., has filed with this Court a motion to extend the time for filing his notice of appeal. According to Deleon's motion, the judgment is dated December 14, 2004. A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Rule 26.2(a) prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect appeal in a criminal case. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex.R.App.P. 26.2(a); Olivo, 918 S.W.2d at 522. The motion filed does not refer to a motion for new trial having been filed in this case. The last date Deleon could timely file his notice of appeal was January 13, 2005, thirty days after the day, according to his motion, the sentence was imposed in open court. See Tex.R.App.P. 26.2(a)(1). Further, no motion for extension of time was filed in this Court within fifteen days of the last day allowed for filing the notice of appeal. Deleon has failed to perfect his appeal. Accordingly, we overrule Deleon's motion for extension of time to file his notice of appeal and dismiss the appeal for want of jurisdiction.
The proper avenue for requesting relief in this instance is through an application for writ of habeas corpus filed with the Texas Court of Criminal Appeals seeking an out-of-time appeal. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Davis v. State, 870 S.W.2d 43, 49 (Tex.Crim.App. 1994).