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Alex Morris v. State ( 2007 )


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  • Opinion issued April 5, 2007  





















    In The

    Court of Appeals

    For The

    First District of Texa



    ___________



    NO. 01-06-00197-CR

    ____________



    ALEX MORRIS, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 174th District Court

    Harris County, Texas

    Trial Court Cause No. 1010110



    MEMORANDUM OPINION  

    Appellant, Alex Morris, was convicted by a jury of the felony offense of murder, and the jury assessed punishment at confinement for 35 years. The trial court sentenced appellant, and signed a final judgment in this case on October 13, 2005. Appellant's counsel filed a timely motion for new trial on November 10, 2005. Tex. R. App. P. 26.2.1(a)(2). Therefore the deadline for filing notice of appeal was Monday, January 30, 2006, because the ninetieth day after sentencing fell on a weekend. Tex. R. App. P. 4.1(a), 26.2(a)(1).

    Appellant's trial counsel filed a notice of appeal on February 23, 2006, 24 days after the deadline. An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. Slaton v. State, 981 S.W.2d 208, 209-10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex. App.--Houston [1st Dist.] 1999, no pet.).

    Appellant's court-appointed counsel filed a motion to withdraw as counsel and a brief concluding that this appeal is without merit. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record that demonstrates the lack of arguable grounds of error. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); Moore v. State, 845 S.W.2d 352, 353 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd).

    Counsel represents that he served a copy of the brief on appellant. Counsel also advised appellant of his right to examine the appellate record and file a pro se brief. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). More than 30 days have passed, and appellant has not filed a pro se brief.

    We have carefully reviewed the record and counsel's brief. Appellant's brief concludes that "the lack of timely notice of appeal in this matter requires the Court of appeals to dismiss the appeal in this matter, and that the direct appeal herein is therefore without merit and wholly frivolous."

    We have reviewed the record and find that we have no jurisdiction to consider the merits of the appeal. Accordingly, we dismiss for lack of jurisdiction

    We grant counsel's motion to withdraw. (1) See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.--Houston [1st Dist.] 2000, no pet.).

    All pending motions are denied as moot.

    It is so ORDERED.

    PER CURIAM

    Panel consists of Justices Taft, Alcala, and Hanks.

    Do not publish. Tex. R. App. P. 47.2(b).





    1. Counsel has a duty to inform appellant of the result of his appeal and also to inform him that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).