Herman Saiz v. State

• Court: Court of Appeals of Texas
• Decided: October 12, 2005
• Docket: 04-05-00396-CR
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-05-00396-CR

Herman SAIZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 365th Judicial District Court, Dimmit County, Texas

Trial Court No. 04-06-02295-DCRAJA

Honorable Amado J. Abascal, III, Judge Presiding

PER CURIAM

Sitting:            Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed:   October 12, 2005

DISMISSED FOR LACK OF JURISDICTION

            Herman Saiz appeals the trial court’s judgment convicting him of felony driving while intoxicated and sentencing him to three years in the Texas Department of Criminal Justice — Institutional Division. The trial court imposed sentence on Saiz on April 8, 2005, and Saiz did not file a motion for new trial. The deadline for filing a notice of appeal was therefore May 9, 2005, thirty days after sentence was imposed. See Tex. R. App. P. 26.2(a)(1). Saiz did not file his notice of appeal until May 26, 2005, and he did not file a motion for extension of time to file the notice of appeal. See Tex. R. App. P. 26.3.

            Saiz contends his May 26, 2005 notice of appeal was timely filed “based on the time frame that began when the appealable order [the Judgment] was filed in these proceedings, that is, ... May 2, 2005.” However, the time for appealing a criminal judgment “begins to run ‘on the day sentence is imposed or suspended in open court’ rather than when the written judgment/sentence is signed” or filed. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (quoting Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993)). “[I]t is the pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it.” Coffey, 979 S.W.2d at 328.

            Because the notice of appeal in this case was not timely filed, we lack jurisdiction to entertain the 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. App. 1991) (explaining that writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). Accordingly, we dismiss this appeal for want of jurisdiction.

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