Robert Allen White v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00709-CR

Robert Allen WHITE, Appellant

v.

The STATE of Texas, Appellee

From the 21st District Court, Lee County, Texas Trial Court No. 7370 The Honorable Dan Beck, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Sandee Bryan Marion, Justice

Delivered and Filed: January 30, 2013

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence in the underlying cause on April 19, 2012. Because

appellant did not file a motion for new trial, the notice of appeal was due to be filed May 21,

2012. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was

due on June 5, 2012. TEX. R. APP. P. 26.3. Appellant did not file his notice of appeal until

September 19, 2012.

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 04-12-00709-CR

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.

Because the notice of appeal appeared to be untimely filed in this appeal, appellant was

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

Appellant responded with a motion requesting an out-of-time appeal. This court, however, does

not have jurisdiction to grant such a request which must instead be sought from the Texas Court

of Criminal Appeals. See 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). Because appellant

failed to file a timely notice of appeal, this appeal is dismissed for lack of jurisdiction.

DO NOT PUBLISH

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