Opinion
No. 4-05-00869-CR
Delivered and Filed: January 18, 2006. DO NOT PUBLISH.
Appeal from the 216th Judicial District Court, Kendall County, Texas, Trial Court No. 4323, Honorable Stephen B. Ables, Judge Presiding. Dismissed for Lack of Jurisdiction.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
The clerk's record was filed in this appeal on December 2, 2005. The clerk's record does not contain a notice of appeal. The trial court clerk prepared the clerk's record based on a notation on the judgment that states: "Notice of Appeal: yes." The "yes" is handwritten. The notice of appeal must be an independent document. See Rivera v. State, 940 S.W.2d 148 (Tex.App.-San Antonio 1996, no pet.). On December 9, 2005, we ordered appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction. On December 19, 2005, appellant responded by filing a motion for extension of time to file the notice of appeal, stating that a written notice of appeal was filed on December 15, 2005. Appellant's notice of appeal was due to be filed on November 2, 2005. A motion requesting an extension of time to file the notice of appeal was due to be filed on November 17, 2005. "[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); 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). Because appellant did not file his notice of appeal or his motion for extension of time within fifteen days of the last day allowed for filing the notice of appeal, this appeal is dismissed for lack of jurisdiction.