Ricarte Gonzalez v. State

Opinion

NO. 07-06-0253-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

AUGUST 25, 2006

______________________________

RICARTE G. GONZALEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-436822; HONORABLE BRADLEY S. UNDERWOOD, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ON MOTION FOR REHEARING

By a memorandum opinion, dated July 27, 2006, we dismissed appellant's appeal for lack of jurisdiction explaining that the notice of appeal was not timely filed and, therefore, the jurisdiction of the court had not been properly invoked.

Appellant has filed a motion for rehearing asking that the court use its discretionary power to grant an extension of time for an untimely filed notice of appeal. Appellant alleges that the failure to do so would ultimately result in a finding of ineffective assistance of counsel on appeal. Miles v. State, 781 S.W.2d 608, 609 (Tex.App.-Amarillo 1989, pet. ref'd). Appellant then contends that we have authority to exercise discretion and allow the appeal to preserve appellant's constitutional right to effective assistance of counsel. Tex. R. App. P. 2; Boulos v. State, 775 S.W.2d 8 (Tex.App.-Houston [1^st Dist.] 1989, pet. ref'd).

The issue was addressed by the Texas Court of Criminal Appeals in Olivo v. State, wherein the Court held that Rule 2 of the Texas Rules of Appellate Procedure could not be used to extend or limit the jurisdiction of the courts of appeals. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Accordingly, we remain convinced that we are without jurisdiction to consider appellant's appeal. ⁽¹⁾

Appellant's motion for rehearing is denied.

Mackey K. Hancock

Justice

Do not publish.

1. Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); see also Ater v. Eighth Court of Appeals, 802 S.W. 2d 241 (Tex.Crim.App. 1991).