Roberto Garcia v. State of Texas

No. 04-01-00276-CR Roberto GARCIA, Appellant v. The STATE of Texas, Appellee From the 379th Judicial District Court of Bexar County, Texas Trial Court No. 1999-CR-5739 Honorable Bill White, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: June 29, 2001

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on February 8, 2000. Because Appellant filed a motion for new trial, the notice of appeal was due to be filed May 9, 2000. Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on May 24, 2000. Tex. R. App. P. 26.3. Appellant filed his notice of appeal on April 17, 2001. Appellant did not file a motion for extension of time.

On May 15, 2001, we ordered appellant to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant filed a response on June 11, 2001, explaining that his notice of appeal was couched in counsel's motion to withdraw.

This court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from felony conviction may be sought by filing a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07).

A late notice of appeal may be considered timely so as to invoke a court of appeals' jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo, 918 S.W.2d at 522. There is no motion for extension of time. Moreover, the notice of appeal cannot be inferred from counsel's motion to withdraw; rather, there must be an independent notice of appeal. Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.--San Antonio 1997, no pet.).

This appeal is therefore dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH