Opinion
No. 03-09-00412-CR
Filed: September 17, 2009. DO NOT PUBLISH.
Appealed from the District Court of Williamson County, 26th Judicial District, No. 97-832-K26, Honorable Billy Ray Stubblefield, Judge Presiding. Dismissed on Appellant's Motion.
Before Justices PATTERSON, PURYEAR and PEMBERTON.
MEMORANDUM OPINION
On March 11, 1998, Gerardo Leyva was convicted of aggravated sexual assault in the above Williamson County cause. The conviction was affirmed by this Court. Leyva v. State, No. 03-09-412-CR (Tex. App.-Austin 1999, no pet.) (not designated for publication). On May 7, 2009, Leyva filed his pro se "motion to enter notice of appeal nunc pro tunc" in the district court. In the motion, Leyva contends that he was denied the opportunity to file a petition for discretionary review and asks the court to "allow the records to show his eligibility to file his petition for discretionary review." The district clerk treated the motion as a notice of appeal and forwarded it to this Court. See Tex. R. App. P. 25.2(e). It is too late to perfect an appeal from the 1998 conviction and, in any event, the conviction was previously appealed and affirmed. The proper procedure for establishing Leyva's entitlement to an out-of-time discretionary review is a post-conviction habeas corpus proceeding. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2008). The appeal is dismissed.