Opinion
No. 13-03-751-CR
Memorandum Opinion Delivered and Filed August 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 105th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices, HINOJOSA and CASTILLO.
MEMORANDUM OPINION
Appellant, Raymond Torres, pleaded guilty to forgery, a state jail offense. The trial court placed appellant on community supervision for five years. The State filed a motion to revoke community supervision. On November 12, 2003, after appellant pleaded true to the allegations contained in the motion, the trial court granted the motion and sentenced appellant to two years in a state jail facility and assessed a $300 fine. In a single issue, appellant contends the trial court improperly denied him credit for time he had spent in custody prior to trial. Because we conclude appellant did not timely file a notice of appeal, we dismiss the appeal for lack of jurisdiction. A timely notice of appeal is required to invoke our jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim. App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). The notice of appeal is timely if filed within thirty days after the sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant files a motion for a new trial. TEX. R. APP. P. 26.2(a); see Olivo, 918 S.W.2d at 522. We may consider a late notice of appeal where (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for an extension of time is filed within the fifteen days, and (3) we grant the motion. See TEX. R. APP. P. 26.3; see also Olivo, 918 S.W.2d at 522. If the notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, we lack jurisdiction over the appeal. Olivo, 918 S.W.2d at 522. Here, the trial court imposed the sentence in open court on November 12, 2003. Appellant did not file a motion for a new trial or a motion for extension of time. Accordingly, his notice of appeal was due by December 12, 2003. See Tex.R.App.P. 26.2(a)(1). Appellant completed an inmate communication form dated November 24, 2003 expressing his desire to pursue an appeal, which we construe as a notice of appeal. The record does not show the form appellant submitted was delivered to the clerk of the trial court. Rather, the form appears to have been sent directly to the trial court. In an order dated December 16, 2003, the trial court acknowledged it was "presented" with the form on December 15. Although the notice of appeal is dated November 24, 2003, the record does not show that this document was filed on or before December 12, 2003. Thus, appellant's notice of appeal was not timely filed. In the absence of a timely filed notice of appeal in a criminal case, we do not have jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. Slaton, 981 S.W.2d at 210. Accordingly, we dismiss this appeal for want of jurisdiction.
A document received within ten days after the filing deadline is considered timely filed if: (1) it was sent to the proper clerk by first-class, express, registered, or certified mail; (2) it was placed in an envelope or wrapper properly addressed and stamped; and (3) it was deposited in the mail on or before the last day for filing. See TEX. R. APP. P. 9.2(b). Appellant does not contend he met these requirements, nor does our review of the record show that these requirements have been met. Accordingly, we do not deem the notice of appeal timely filed under rule 9.2(b).
Appellant may pursue an out-of-time appeal by filing an application for writ of habeas corpus with the court of criminal appeals pursuant to article 11.07 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004); see also Olivo v. State, 918 S.W.2d 519, 525 n. 8 (Tex.Crim.App. 1996); Charles v. State, 809 S.W.2d 574, 576 (Tex. App.-San Antonio 1991, no writ).