Jose A. Cordova v. State

• Court: Court of Appeals of Texas
• Decided: September 23, 2009
• Docket: 04-09-00485-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00485-CR

Jose A. CORDOVA, Appellant

v.

The STATE of Texas, Appellee

From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2005-CR-5739 Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: September 23, 2009

DISMISSED FOR WANT OF JURISDICTION

The trial court imposed sentence on February 5, 2007. Because appellant did not file a

motion for new trial, the notice of appeal was due to be filed on March 7, 2007. TEX . R. APP . P.

26.2(a)(1). A motion for extension of time to file the notice of appeal was due on March 22, 2007.

TEX . R. APP . P. 26.3. Appellant did not file his notice of appeal until May 4, 2009; appellant did not

file a motion for extension of time. This court issued an order on August 18, 2009 directing 04-09-00485-CR

appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. On

September 3, 2009, appellant filed a written response asserting that his double jeopardy rights were

violated in this case and asking this court to extend the time for filing his notice of appeal.

A late notice of appeal invokes the appellate court’s jurisdiction in a criminal case only if

(1) it is filed within fifteen days of the last day allowed for filing the notice of appeal, (2) a motion

for extension of time is filed in the court of appeals within the fifteen-day grace period, and (3) the

court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519, 522 (Tex.

Crim. App. 1996). This court may not extend the time to file a notice of appeal unless a motion for

extension of time is filed in the appellate court within fifteen (15) days after the deadline for filing

the notice of appeal. See TEX . R. APP . P. 26.3. As noted, appellant did not file a motion for

extension within the fifteen-day grace period. When a notice of appeal and a motion for extension

of time are not filed within the fifteen-day grace period, the appellate court lacks jurisdiction. TEX .

R. APP . P. 26.3; Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). But see Ater v. Eighth

Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (an out-of-time appeal from a final

felony conviction may be sought by filing a writ of habeas corpus in the trial court pursuant to article

11.07 of the Texas Code of Criminal Procedure). Accordingly, this appeal is dismissed for lack of

jurisdiction.

DO NOT PUBLISH

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