Robert Lionel Houston v. State

Opinion

MEMORANDUM OPINION No. 04-11-00640-CR

Robert Lionel HOUSTON, Appellant

v.

The STATE of Texas, Appellee

From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-2011 Honorable Raymond Angelini, Judge Presiding

PER CURIAM

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

Delivered and Filed: October 19, 2011

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence on November 26, 2007. Because appellant did not file a

motion for new trial, the notice of appeal was due to be filed on December 26, 2007. TEX. R.

APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on January

10, 2008. TEX. R. APP. P. 26.3. Appellant did not file his notice of appeal, styled as a “Motion to

File Out of Time Appeal,” in the trial court until August 31, 2011; appellant did not file a motion

for extension of time. On September 13, 2011, this court issued an order directing appellant to 04-11-00640-CV

show cause why this appeal should not be dismissed for lack of jurisdiction; appellant has not

responded.

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). 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. Id.; TEX.

R. APP. P. 26.3; 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DO NOT PUBLISH

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