Edgar R. Hernandez v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

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NO. 03-08-00635-CR

Edgar R. Hernandez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. D-1-DC-04-302732, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

We overrule Hernandez's motion for rehearing, withdraw our opinion and judgment issued January 9, 2009, and substitute the following in its place.

Edgar Hernandez seeks to appeal from a judgment of conviction for indecency with a child by contact. Sentence was imposed on April 9, 2007. No motion for new trial was filed. The deadline for perfecting appeal was therefore May 9, 2007. See Tex. R. App. P. 26.2(a)(1). Notice of appeal was filed on October 9, 2008. While Hernandez filed a motion for an out-of-time appeal in the trial court on September 26, 2008, neither this Court nor the trial court has authority to grant an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (out-of-time appeal from final felony conviction may be sought by filing writ of habeas corpus with court of criminal appeals pursuant to article 11.07 of code of criminal procedure). Hernandez does not contend that the court of criminal appeals has granted him an out-of-time appeal.

Under the circumstances, we lack jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). The appeal is dismissed.

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Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Dismissed for Want of Jurisdiction

Filed: March 5, 2009

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