Erskine L.T. Allen, Jr. v. State ( 2006 )

ALLEN V. STATE NO. 07-06-0211-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 7, 2006 ______________________________

ERSKINE L.T. ALLEN, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 22,580; HON. CECIL PURYEAR, PRESIDING _______________________________

Abatement and Remand _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Erskine L.T. Allen, Jr. (appellant) perfected an appeal from the trial court's denial of his motion for DNA testing. Pending before this court is his appointed counsel's motion to withdraw. From the contents of the motion, it appears that a conflict of interest exists between appellant and his appointed counsel. Thus, we grant the motion of counsel to withdraw. We further abate and remand the case to the 137^th Judicial District Court and order the judge of that court to appoint new counsel to represent appellant in this appeal. The name, address, telephone number, and state bar number of the newly appointed attorney shall be included in the order of appointment. The trial judge shall also cause the order appointing new counsel to be filed with this court, on or before January 5, 2007, via a supplemental clerk's record. Finally, the appellant's brief (which may include an Anders brief if warranted) will be due on or before February 5, 2007.

It is so ordered.

Per Curiam

Do not publish.

n. Thus, we cannot create jurisdiction where none exists. Id. See also, Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Cr.App. 1998).

Appellant's sentence was imposed on August 3, 2005, although the order adjudicating her guilty was not signed until August 22, 2005. However, in a criminal case, the time for perfecting an appeal commences on the date sentence is imposed. Tex. R. App. P. 26.2(a). See also Rodarte v. State, 860 S.W.2d 108, 109 (Tex.Cr.App. 1993). No motion for new trial was filed, and although appellant did file a pro se motion to retract her guilty plea, under the Texas Rules of Appellate Procedure, it does not extend the time for perfecting an appeal. Cf. Rule 26.1(a) which extends the time for perfecting an appeal in a civil case to 90 days if a motion for new trial, motion to modify, motion to reinstate, or a request for findings of fact and conclusions of law is filed. The criminal counterpart, Rule 26.2(a)(2), provides a 90-day extension only if a motion for new trial is filed. We conclude appellant's notice of appeal filed on September 8, 2005, was untimely and although it was filed within the 15-day extension period, it was unaccompanied by a motion for extension of time reasonably explaining the delay.

Accordingly, the purported appeal is dismissed for want of jurisdiction. ⁽¹⁾

Don H. Reavis

Justice

Do not publish.

1. Appellant may have recourse by filing a post-conviction writ of habeas corpus returnable to the Court of Criminal Appeals for consideration of an out-of-time appeal. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004-05).