Washington, Bobby Ray v. State ( 2002 )

  Opinion issued August 8, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00654-CR

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BOBBY RAY WASHINGTON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 866219

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MEMORANDUM OPINION

This is an appeal from the denial of a motion for reconsideration of sentence. We dismiss for lack of jurisdiction.

Appellant was sentenced in this case to 25 years confinement and a $150,000 fine on September 28, 2001, after a jury convicted him of possession with intent to deliver at least 400 grams of cocaine. Notice of appeal was due no later than Monday, October 29, 2001. See Tex. R. App. P. 4.1, 26.2(a)(1). The deadline for filing a motion for new trial was that same date. Tex. R. App. P. 21.4. A timely motion for new trial would have extended the deadline for filing notice of appeal for 90 days to December 27, 2001. See Tex. R. App. P. 26.2(a)(2). However, no timely notice of appeal or motion for new trial was filed in this case.

On April 2, 2002, appellant filed a pro se motion for reconsideration of sentence that the trial court denied on April 12. On June 7, 2002, appellant filed a notice of appeal "from the denial of petitioner's application for reconsideration of sentence entered in cause No. 866219," and this appeal followed.

If we construe appellant's motion for reconsideration of sentence as a motion for new trial, it was untimely, and the trial court was without jurisdiction to consider it. Drew v. State, 743 S.W.2d 207, 222-23 (Tex. Crim. App. 1987); Hagens v. State, 979 S.W.2d 788, 791 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd). Moreover, an untimely motion for new trial does not extend the deadline for filing notice of appeal. Mendez v. State, 914 S.W.2d 579, 580 (Tex. Crim. App. 1996).

If we construe the motion as a petition for writ of habeas corpus, this Court has no jurisdiction to hear a post-conviction application for writ of habeas corpus in felony cases. See Board of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth District, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995).  

Appellate jurisdiction is invoked by the filing of a timely, proper notice of appeal. White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001); State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000). Because the jurisdiction of this Court was not properly invoked, the appeal is dismissed.

All pending motions are denied as moot.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Hedges, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.