Frank Alexander v. State

• Court: Court of Appeals of Texas
• Decided: March 10, 2010
• Docket: 04-10-00072-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-10-00072-CR

Frank ALEXANDER, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2007CR10812 Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: March 10, 2010

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence in the underlying cause on August 11, 2009. A timely

motion for new trial having been filed, appellant’s notice of appeal was due to be filed no later than

November 9, 2009. See TEX . R. APP . P. 26.2. Appellant’s notice of appeal was not filed with the

trial court clerk until January 27, 2010. This court lacks jurisdiction over an appeal of a criminal

conviction in the absence of a timely, written notice of appeal. See 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. 04-10-00072-CR

App. 1991) (out-of-time appeal from final felony conviction may be sought by filing a writ of habeas

corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure)1; Apt v. State, No. 04-03-

00885-CR, 2004 WL 730832, at *1 (Tex. App.—San Antonio Apr. 7, 2004, no pet.) (unlike rule in

civil cases, notice of appeal filed with appellate court in criminal case is not deemed filed the same

day with the trial court clerk) (not designated for publication). Accordingly, this appeal is dismissed

for lack of jurisdiction.

DO NOT PUBLISH

1 … The trial court signed an appointment of attorney on January 29, 2010, with a handwritten notation “out of time appeal.” It appears the appointment was made by the trial court in an effort to assist the appellant in pursuing an out-of-time appeal.

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