Dominque Uribe v. State

• Court: Court of Appeals of Texas
• Decided: January 29, 2004
• Docket: 13-03-00770-CR
• Status: Published

Opinion

v00154

NUMBER 13-03-770-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DOMINIQUE URIBE,                                                                     Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.

On appeal from the 117th Judicial District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Garza

Opinion Per Curiam

          On November 7, 2003, appellant, Dominique Uribe, was sentenced for convictions on four counts of indecency with a child. His notice of appeal was due to be filed on December 8, 2003. See Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on December 23, 2003. See Tex. R. App. P. 26.3. Appellant’s notice of appeal was received by this Court on December 30, 2003. On January 7, 2004, appellant’s newly-appointed counsel filed a motion and a first-amended motion requesting leave to file the notice of appeal out-of-time.

          A timely notice of appeal is required to invoke our jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The notice of appeal is timely if filed within thirty days after the sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for a new trial. Tex. R. App. P. 26.2; see Olivo, 918 S.W.2d at 522. A late notice of appeal may be considered timely only where:

(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; see Tex. R. App. P. 26.3. Absent a timely-filed motion for extension of time, we lack jurisdiction. Olivo, 918 S.W.2d at 522.

          Here, no motion for extension of time was timely filed. Accordingly, we lack jurisdiction over the appeal. See id. Appellant may pursue an out-of-time appeal by filing an application for writ of habeas corpus with the court of criminal appeals pursuant to article 11.07 of the code of criminal procedure. See Tex. Crim. Proc. Code Ann. art. 11.07 (Vernon Supp. 2004); see also Olivo, 918 S.W.2d at 525 n.8 (exclusive post-conviction remedy in final felony convictions is through writ of habeas corpus pursuant to article 11.07); Charles v. State, 809 S.W.2d 574, 576 (Tex. App.–San Antonio 1991, no writ) (where appeal dismissed for lack of timely motion for extension of time to file notice of appeal, appropriate procedure is post-conviction writ of habeas corpus pursuant to article 11.07).

          Appellant’s first amended motion for leave to file notice of appeal out-of-time is dismissed for lack of jurisdiction.

                                                                                                PER CURIAM

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

Opinion delivered and filed

this the 29th day of January, 2004.