Opinion
No. 10-05-00433-CR
Opinion delivered and filed February 22, 2006. DO NOT PUBLISH.
Appeal from the 413th District Court, Johnson County, Texas, Trial Court No. F34964. Appeal dismissed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE concurs).
"(Justice Vance concurs. Hunt's assertions that he was prevented from filing a timely notice of appeal and other facts that, if true, would entitle him to an out-of-time appeal are not matters we can act on. They must be presented in a post-conviction habeas corpus proceeding. See e.g., Ex parte McPherson, 32 S.W.3d 860 (Tex.Crim.App. 2000).)"
MEMORANDUM OPINION
On October 11, 2005, Shannon Kelly Hunt pled guilty to burglary of a habitation and was sentenced to 25 years in prison. The trial court gave him permission to appeal. Because he did not file a motion for new trial, his notice of appeal was due on November 10, 2005. TEX. R. APP. P. 26.2(a). Hunt filed his notice of appeal on December 1, 2005, 21 days late. We notified Hunt by letter that his notice of appeal appeared untimely and that his appeal would be dismissed unless he filed a response showing grounds for continuing the appeal. See TEX. R. APP. P. 44.3. Hunt responded that (1) he filed a motion to extend time to file a notice of appeal on November 18, 2005, only 8 days after his notice of appeal was due, (2) he wanted to file a notice of appeal but his counsel did not file a notice of appeal, and (3) he was prevented by jail authorities from filing a pro se notice of appeal. This Court can grant an extension of time to file a notice of appeal if, within 15 after the deadline for filing the notice of appeal, the appealing party (a) files in the trial court the notice of appeal and (b) files in the appellate court a motion complying with Rule 10.5(b) of the Rules of Appellate Procedure. TEX. R. APP. P. 26.3. But Hunt did not file his notice of appeal with the trial court within 15 days after the deadline for filing the notice of appeal and he did not file a motion with this Court. And Hunt's inability to file a notice of appeal, either through his trial attorney or pro se, does not change the fact that we have no jurisdiction over an appeal where the notice is untimely. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996); Fowler v. State, 16 S.W.3d 426 (Tex.App.-Waco 2000, pet. ref'd). We have no jurisdiction of this appeal. Therefore, this case is dismissed.