Gerardo Leyva v. State

• Court: Court of Appeals of Texas
• Decided: September 17, 2009
• Docket: 03-09-00412-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00412-CR Gerardo Leyva, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 97-832-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

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

On March 11, 1998, Gerardo Leyva was convicted of aggravated sexual assault in the above Williamson County cause. The conviction was affirmed by this Court. Leyva v. State, No. 03-09-412-CR (Tex. App.--Austin 1999, no pet.) (not designated for publication).

On May 7, 2009, Leyva filed his pro se "motion to enter notice of appeal nunc pro tunc" in the district court. In the motion, Leyva contends that he was denied the opportunity to file a petition for discretionary review and asks the court to "allow the records to show his eligibility to file his petition for discretionary review." The district clerk treated the motion as a notice of appeal and forwarded it to this Court. See Tex. R. App. P. 25.2(e).

It is too late to perfect an appeal from the 1998 conviction and, in any event, the conviction was previously appealed and affirmed. The proper procedure for establishing Leyva's entitlement to an out-of-time discretionary review is a post-conviction habeas corpus proceeding. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp. 2008).

The appeal is dismissed.

___________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Dismissed for Want of Jurisdiction

Filed: September 17, 2009

Do Not Publish