Rudolfo Alderete v. State

• Court: Court of Appeals of Texas
• Decided: January 14, 2004
• Docket: 04-03-00866-CR
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-03-00866-CR

Rudolfo ALDERETE,

Appellant

v.

STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-4871-W

Honorable Sharon MacRae, Judge Presiding

Per Curiam

Sitting: Paul W. Green, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and filed: January 14, 2003

DISMISSED FOR LACK OF JURISDICTION

Appellant's sentence was imposed on June 26, 2003. A motion for new trial or notice of appeal was due July 28, 2003. See Tex. R. App. P. 26.2. The clerk's record does not contain a motion for new trial. A motion for extension of time to file the notice of appeal was due in this court August 12, 2003, see Tex. R. App. P. 41(b)(2), but no such motion has been filed. The notice of appeal was not filed until November 10, 2003. On December 23, 2003, we ordered appellant to respond to our show cause order with a reasonable explanation for why this appeal should not be dismissed for lack of jurisdiction. Appellant's appointed counsel did not respond. Appellant responded pro se.

In his response, appellant states that he filed a motion for an out-of-time appeal in this court on December 2, 2003. Our record does not contain the motion referenced by appellant, nor does the trial court clerk's record contain such a motion. However, even if the motion was filed on the date stated by appellant, it would not preserve appellant's right to appeal because it was filed too late. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (a motion for extension of time must be filed within fifteen days after the notice of appeal is due).

Because appellant failed to timely file either a motion for extension of time or a notice of appeal in this case, we lack jurisdiction to entertain the appeal. See Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that the writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). Accordingly, we dismiss Rudolfo Alderete's appeal for lack of jurisdiction.

Do Not Publish