Michael Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: July 27, 2005
• Docket: 04-05-00346-CR
• Status: Published

Opinion

MEMORANDUM OPINION

Nos. 04-05-00346-CR, 04-05-00347-CR and 04-05-00348-CR

Michael HERNANDEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 81st and 218th Judicial District Courts, Atascosa County, Texas

Trial Court Nos. 04-07-0156-CRA, 04-07-0157-CRA and 04-07-0158-CRA

Honorable Stella Saxon, Judge Presiding

PER CURIAM

Sitting:            Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed:   July 27, 2005

DISMISSED FOR LACK OF JURISDICTION

            The trial court imposed sentence on February 3, 2005. A timely motion for new trial was filed on March 4, 2005; therefore, the notice of appeal was due to be filed on May 4, 2005. Tex. R. App. P. 26.2(a)(2). A motion for extension of time to file the notices of appeal was due on May 19, 2005. Tex. R. App. P. 26.3. Appellant filed both a motion to extend time to file his notices of appeal and his notices of appeal on May 26, 2005, which was beyond the fifteen-day grace period provided under Rule 26.3.

            In the motion to extend time, appellate counsel states she was appointed to represent appellant on April 26, 2005; she is currently moving offices; and is currently working on an appellate brief due in federal court. However, this court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (out-of-time appeal from felony conviction may be sought by filing a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07). Here, the motion for extension of time and the notices of appeal were filed beyond the fifteen-day grace period, and therefore, were not timely. Accordingly, appellant’s motions to extend time are DENIED, and these appeals are therefore dismissed for lack of jurisdiction.

DO NOT PUBLISH