Ex Parte: Albert Nicholas Brann

• Court: Court of Appeals of Texas
• Decided: February 5, 2003
• Docket: 07-02-00522-CR
• Status: Published

Opinion

NO. 07-02-0522-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 5, 2003

______________________________

EX PARTE ALBERT NICHOLAS BRANN

_________________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ⁽¹⁾

ON MOTION FOR REHEARING

By opinion dated December 23, 2002, this Court dismissed Brann's "Application For The Most Extraordinary Writ of Habeas Corpus" for want of jurisdiction. Pursuant to Rule 49.8 of the Texas Rules of Appellate Procedure, Brann has filed a motion for extension of time in which to file his motion for rehearing together with his motion. We grant the request for an extension of time, but remaining convinced that our original disposition was correct, we overrule his motion for rehearing with these additional comments.

On January 25, 2002, the Honorable Cecil G. Puryear, Judge of the 137th District Court of Lubbock County denied Brann's application for a writ of habeas corpus. Although this Court has appellate jurisdiction over criminal habeas matters, see Denby v. State, 627 S.W.2d 435 (Tex.App.-Houston [1st Dist.] 1981, orig. proceeding), cert. denied, 462 U.S. 1110, 103 S.Ct. 2461, it is still necessary to file a timely notice of appeal to invoke our jurisdiction. See Tex. R. App. P. 25.2(a) and 26.2(a). No notice of appeal was filed from Judge Puryear's order and the time for doing so has lapsed.

Brann also requests that we grant him an out-of-time appeal; however, Brann may have a remedy by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time appeal. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003).

Accordingly, Brann's motion for rehearing is overruled.

Don H. Reavis

Justice

Do not publish.

1.

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.