Joseph Jeffrey v. State ( 2008 )

NO. 07-08-0267-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 8, 2008
______________________________
JOSEPH AKA JOEY H. JEFFREY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2007-418170; HONORABLE WELDON KIRK, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Joseph Jeffrey, (aka Joey H. Jeffrey), seeks to appeal a judgment convicting him
of intoxicated assault with a vehicle and imposing a life sentence. A copy of the judgment
included in the clerk’s record and appellant’s docketing statement indicate sentence was
imposed May 20, 2008. His notice of appeal was filed in the trial court on June 23, 2008.
Finding we have no jurisdiction to consider the appeal, we dismiss it.
By letter, this Court informed appellant that the notice of appeal did not appear
timely and directed him to file any documents or matters considered necessary for the
Court to determine its appellate jurisdiction. In response, his counsel has submitted an
affidavit in which he describes the circumstances that caused him to file the notice of
appeal on June 23. Counsel’s affidavit concludes this Court is without jurisdiction to hear
the appeal. We agree.
Our appellate jurisdiction is triggered through a timely notice of appeal. Olivo v.
State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996). Rule of Appellate Procedure 26.2(a)
requires a notice of appeal be filed within 30 days after the day sentence is imposed in
open court, or within 90 days after imposition of the sentence if a timely motion for new trial
is filed. No motion for new trial was filed in this case.
The rules permit an appellate court to extend the time to file a notice of appeal,
under a procedure outlined in Rule of Appellate Procedure 26.3. Appellant did not initiate
that procedure in this case. Appellant’s notice of appeal, filed more than thirty days after
imposition of sentence in open court, was untimely.
The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas
corpus from the Texas Court of Criminal Appeals pursuant to Code of Criminal Procedure
article 11.07. Tex. Code Crim. Proc. Ann art. 11.07 (Vernon Supp. 2004); Portley v. State,
89 S.W.3d 188, 190 (Tex.App.–Texarkana 2002, no pet.). Because appellant’s notice of
appeal was untimely, this Court has no jurisdiction to take any action but to dismiss the
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appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); see Olivo, 918
S.W.2d at 522.
Consequently, we dismiss the appeal for want of jurisdiction.
James T. Campbell
Justice
Do not publish.
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