Opinion
No. 10-06-00289-CR.
Opinion delivered and filed November 22, 2006. DO NOT PUBLISH.
Appeal from the 85th District Court, Brazos County, Texas, Trial Court No. 28519-85.
BEFORE: Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Christopher Baron Jones was convicted of burglary of a habitation on July 11, 2001. He filed an "Out of Time Notice of Appeal-Guilty Plea" on August 3, 2006. The Clerk of this Court notified Jones by letter that his appeal was subject to dismissal for want of jurisdiction because it appeared that the notice of appeal was untimely. Jones responded with a motion for an extension of time to file a response and a request for the appointment of counsel. However, a proper proof of service was not attached to the motion or the request. See TEX. R. APP. P. 9.5. The Clerk notified Jones by letter that the Court may strike his motion and request if a proper proof of service for each document was not provided to the Court within 14 days from the date of the letter. On November 3, 2006, Jones responded with another copy of the motion for extension of time and the request for the appointment of counsel. Additionally, he tendered for filing a "Motion for Continuing Appeal." None of these three documents have been served as required. See TEX. R. APP. P. 9.5. The documents had been previously presented to the District Clerk with a request to the District Clerk to "Please file properly and serve Counsel for the State and forward copy to the Tenth Court of Appeals . . ." The District Clerk properly responded to Jones by returning the documents to him and advised him "Any documents that you want them [the Tenth Court of Appeals] to hear should be filed directly with them. We do not forward paperwork to them." From the third tendered document, the motion for continuing the appeal, however, it is clear that Jones seeks to appeal his July 11, 2001 conviction on the basis of newly discovered evidence. It appears a witness may have recanted; and Jones will argue that his counsel was ineffective and that his plea of guilty was not truly voluntary. This pleading, though not properly served, confirms our initial belief that we have no jurisdiction of this attempted direct appeal of a five-year-old conviction. Olivo v. State, 918 S.W.2d 519, 522-523 (Tex.Crim.App. 1996). Any relief to be obtained by Jones will necessarily have to be through some other procedure such as an Article 11.07 post conviction petition for writ of habeas corpus. See Ex parte Mendenhall, No. 10-05-00410-CR, 2006 Tex. App. LEXIS 9507 (Tex.App.-Waco Nov. 1, 2006, no pet. h.). Under the circumstances, we use Rule 2 to suspend the proof of service requirement for Jones's motion for extension of time, request for appointment of counsel, and motion for continuing the appeal, each of which are dismissed as moot. See TEX. R. APP. P. 2. This appeal is dismissed for want of jurisdiction. TEX. R. APP. P. 26.2(a); 44.3. Motions and request dismissed as moot Appeal dismissed