Opinion
No. 07-16-00049-CR
02-22-2016
JESSE DAVID FREEMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court Randall County, Texas
Trial Court No. 25,892-C, Honorable Ana Estevez, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jesse David Freeman, appellant, attempts to appeal his conviction for unlawful possession of a firearm by a felon. Although his sentence was imposed on November 17, 2015, appellant did not file a notice of appeal until January 27, 2016. We dismiss for want of jurisdiction.
To be timely, a notice of appeal must be filed within thirty days after the day the sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or within ninety days after the day sentence is imposed or suspended in open court if a motion for new trial is filed. TEX. R. APP. P. 26.2(a). A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If it is untimely, the court can take no action other than to dismiss the proceeding. Id. at 523.
Because appellant did not file a motion for new trial, his notice of appeal was due by December 17, 2015. In his Motion to Retain Appeal, appellant urges the court to construe his Pauper's Oath on Appeal, an order appointing appellate counsel, and an order to prepare the reporter's record filed on November 18, 2015 as sufficient notice of appeal under Texas Rule of Appellate Procedure 25.2(b), (c). Appellant asserts that the notice of appeal filed on January 27, 2016 was, thus, an amended notice of appeal. See TEX. R. APP. P. 25.2(f). Like other appellate courts, this court has held that it has no authority to accept a signed Pauper's Oath on Appeal in lieu of a timely notice of appeal. See Edwards v. State, No. 07-07-00423-CR, 2007 Tex. App. LEXIS 8384, at *2 (Tex. App.—Amarillo Oct. 23, 2007, no pet.) (mem. op., not designated for publication); see also Alejandro v. State, No. 14-06-00539-CR, 2006 Tex. App. LEXIS 6563 (Tex. App.—Houston [14th Dist.] July 27, 2006, pet. ref'd) (per curiam) (mem. op., not designated for publication); Currie v. State, No. 09-06-00225-CR, 2006 Tex. App. LEXIS 7662 (Tex. App.—Beaumont Aug. 30, 2006, no pet.) (mem. op., not designated for publication) (holding that a Pauper's Oath on Appeal that includes a trial court's order appointing counsel on appeal and directions to the court reporter to prepare a record was not sufficient notice of appeal). To do so would obviate Rule 25.2(b). Edwards, 2007 Tex. App. LEXIS 8384, at *2-3.
Because appellant's notice of appeal was untimely filed, we have no jurisdiction over the matter. We deny appellant's motion to retain appeal and dismiss the appeal.
Appellant may seek an out of time appeal from his felony conviction by writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015). --------
Per Curiam Do not publish.