James Richard Shannon v. State ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAMES RICHARD SHANNON,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '

No. 08-03-00391-CR Appeal from the 106th District Court of Gaines County, Texas (TC# 02-3236)

MEMORANDUM OPINION

According to documents on file with this Court, James Richard Shannon was sentenced on December 12, 2002.  On January 28, 2003, he filed in the trial court both a notice of appeal and a motion for extension of time to file the notice of appeal.

Shannon=s notice of appeal was due on January 13, 2003.  See Tex. R. App. P. 26.2(a)(1).  Therefore, the notice of appeal filed on January 28, 2003 was untimely.  We may grant an extension of time to file the notice of appeal if the notice is filed in the trial court within fifteen days after the last day allowed and, within the same period, a motion for extension of time is filed in this Court.  Tex. R. App. P. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Although Shannon filed his notice of appeal and the motion for extension of time within the fifteen-day grace period, he filed the motion for extension of time in the wrong court. Accordingly, we lack jurisdiction over the appeal.  See Olivo, 918 S.W.2d at 522; Jones v. State, 900 S.W.2d 421, 423 (Tex. App.--Texarkana 1995, no pet.).

Shannon has filed a motion to invoke jurisdiction, arguing that the trial court failed to forward his notice of appeal and motion for extension of time to this Court in a timely fashion.  He asserts that if the trial court had timely notified him of his error or forwarded his documents to this Court, he could have corrected the error.  He argues that as a pro se appellant he should not be penalized for his ignorance.  These arguments do not establish that we have jurisdiction over this appeal.  The proper remedy to obtain an out-of-time appeal is to file a petition for writ of habeas corpus returnable to the Court of Criminal Appeals.  See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003).

This appeal and Shannon=s motion to invoke jurisdiction are dismissed.

SUSAN LARSEN, Justice

October 2, 2003

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)