Eric Dewayne Small v. State ( 2008 )

Opinion issued June 5, 2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00236-CR

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ERIC DEWAYNE SMALL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 985103

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MEMORANDUM OPINION

Appellant, Eric Dewayne Small, was convicted by a jury of murder, and, after pleading true to one enhancement paragraph, the jury assessed his punishment at confinement for 99 years.

On March 24, 2006, the trial court sentenced appellant and signed a final judgment in this case. The thirtieth day after sentencing fell on Sunday, April 23, 2006, and, therefore, the deadline for filing notice of appeal was Monday, April 24, 2006. See Tex. R. App. P. 4.1(a), 26.2(a)(1).

On April 24, 2006, appellant's counsel, Arthur Washington, filed a motion for new trial and a motion in arrest of judgment that extended the deadline for filing notice of appeal to June 22, 2006. Tex. R. App. P. 4.1(a), 26.2(a)(1). The motions were overruled by operation of law. See Tex. R. App. P. 21.6, 21.8 (a), (c), 22.4(b). Therefore, the trial court's judgment became final 90 days after sentencing on June 22, 2006. See Tex. R. App. P. 26.2.

On March 13, 2007, 264 days after the deadline for filing a notice of appeal in this case, appellant filed a pro se document entitled "petitioner's memorandum of law in support of his petition for writ of habeas corpus requesting an out-of-time appeal." The district clerk's office treated the document filed on March 13, 2007 as a notice of appeal and sent it to this Court. This appeal followed.

We construe the document filed on March 13, 2007 as a motion for out-of-time appeal. Neither the trial court nor this Court has authority to grant an out-of-time appeal. The exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to article 11.07 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. Art. 11.07 (Vernon Supp. 2007); Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) .  

Accordingly, we dismiss the appeal for lack of jurisdiction.

Any pending motions are denied as moot.

PER CURIAM

Panel consists of Justices Taft, Jennings, and Bland.

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