Rafael M. Villarreal v. State

Opinion

MEMORANDUM OPINION No. 04-10-00838-CR

Rafael M. VILLARREAL, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2008CR10755 Honorable Maria Teresa Herr, Judge Presiding

PER CURIAM

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

Delivered and Filed: December 22, 2010

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence in the underlying cause on November 20, 2009.

Because appellant did not file a motion for new trial, the notice of appeal was due to be filed

December 21, 2009. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice

of appeal was due on January 5, 2010. TEX. R. APP. P. 26.3. Appellant filed a notice of appeal

on November 22, 2010, and filed a motion to extend time to file the notice of appeal on

November 23, 2010. 04-10-00838-CR

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be

considered timely so as to invoke a court of appeals’ jurisdiction if: (1) it is filed within fifteen

days of the last day allowed for filing; (2) a motion for extension of time is filed in the court of

appeals within fifteen days of the last day allowed for filing the notice of appeal; and (3) the

court of appeals grants the motion for extension of time. See id. In this case, none of the

deadlines were met. Because the notice of appeal was untimely, this appeal is dismissed for lack

of jurisdiction. See id.; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim.

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).

DO NOT PUBLISH

-2-