Opinion
No. 01-07-00822-CR
Opinion issued February 28, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 400th District Court, Fort Bend County, Texas, Trial Court Cause No. 39842.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
We are without jurisdiction to entertain this appeal. Appellant, Kendrick Earl Edwards, was convicted by jury of the offense of aggravated robbery. The trial court sentenced appellant, and signed a final judgment on November 28, 2005. Appellant did not file a motion for new trial in this case, and therefore the deadline for filing a notice of appeal was December 28, 2005, 30 days after sentencing. See TEX. R. APP. P. 26.2(a)(1). Appellant filed a notice of appeal, on September 18, 2007, 629 days after the deadline for filing his notice of appeal. On November 28, 2007 appellant filed a motion to extend time to file a notice of appeal. An appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party files the notice of appeal in the trial court and files a motion to extend time to file the notice of appeal in the appellate court. TEX. R. APP. P. 26.3. Additionally, the Court of Criminal Appeals has held that the appellate courts lack jurisdiction to hear the case unless both the notice of appeal and the motion to extend time are filed within the prescribed fifteen-day time period after the deadline for filing a notice of appeal. Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998). The deadline for appellant to file a notice of appeal was December 28, 2005, and, therefore the deadline to file a motion to extend time was January 12, 2006. Both appellant's notice of appeal and his motion to extend were filed more than 15 days after the December 28, 2005 deadline and are untimely. Appellant's motion to extend time to file his notice of appeal is denied. The trial court's judgment became final on November 28, 2005. See TEX. R. APP. P. 26.2(a)(1). See TEX. R. APP. P. 21.4(a), 22.3, 26.2(a). An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Even if we were to construe appellant's late notice of appeal filed on September 18, 2007, as a motion for an out-of-time appeal, neither this Court nor the trial court has authority to grant an out-of-time appeal. The exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to article 11.07 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. Art. 11.07 (Vernon Supp. 2007); See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991). The appeal in cause number 39842 is dismissed for lack of jurisdiction.