Opinion
No. 10-07-00041-CR
April 25, 2007. DO NOT PUBLISH.
Appeal From the 272nd District Court Brazos County, Texas, Trial Court No. 05-03424-CRF-272.
Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Freddie Lee Wallace was convicted of Aggravated Sexual Assault on July 31, 2006 and sentenced to life in prison. There being no motion for new trial in the record, his notice of appeal was due August 30, 2006. See TEX. R. APP. P. 26.2(a). Wallace filed a pro-se notice of appeal on January 23, 2007, almost 5 months late. Sometime after the notice of appeal, the trial court appointed an attorney who filed another notice of appeal and filed a motion for extension of time to file a notice of appeal. The motion for extension of time to file a notice of appeal was denied.
Before we were aware of the appointment of counsel, the Clerk of the Court warned Wallace by letter that because the notice of appeal appeared untimely, the Court may dismiss the appeal unless, within 21 days from the date of the letter, a response was filed showing grounds for continuing the appeal. See TEX. R. APP. P. 44.3. More than 21 days passed and Wallace did not respond to the Clerk's warning.
But having learned of the appointment of counsel, and pursuant to Rule 44.3 of the Texas Rules of Appellate Procedure, the Clerk again notified Wallace through his attorney that this appeal is subject to dismissal for want of jurisdiction because it appears the notice of appeal is untimely. The Clerk also warned Wallace that the Court may dismiss this appeal unless, within 21 days of the date of this letter, a response is filed showing grounds for continuing the appeal.
In response to the Clerk's letter, Wallace's counsel relayed to us that:
Nothing in the clerk's record indicated that the Defendant was told of his right to appeal by the trial court nor [sic] his trial attorney. . . . His trial attorney filed no motion to withdraw within 30 days after Defendant's sentencing, nor a pro se notice of appeal. . . .
Due to these circumstances, counsel prayed that we not dismiss the appeal, but grant an extension to file a notice of appeal as previously requested.
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). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Under those circumstances we can take no action other than to dismiss the appeal. Id.
The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus from the Court of Criminal Appeals pursuant to article 11.07 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005); Portley v. State, 89 S.W.3d 188, 189 (Tex.App. — Texarkana 2002, no pet.); Reyes v. State, 883 S.W.2d 291, 293 n. 2 (Tex.App.-El Paso 1994, no pet.). An article 11.07 writ must be made returnable to the Court of Criminal Appeals because that Court has the exclusive authority to grant post-felony conviction relief, such as an out-of-time appeal, if the defendant is then confined as a result of that final felony conviction, as it appears Wallace is so confined. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 3 (Vernon 2005); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991) ("We are the only court with jurisdiction in final post-conviction felony proceedings."); Parr v. State, 206 S.W.3d 143, 145 (Tex.App.-Waco 2006, no pet.).
Counsel informed us that Wallace has filed a writ of habeas corpus which is pending in the trial court. Because the writ is still pending in the trial court, the Court of Criminal Appeals has yet to grant Wallace an out-of-time notice of appeal.
We do not have jurisdiction of this appeal. It is dismissed.