Opinion
No. PD-1680-04
Filed February 9, 2005. DO NOT PUBLISH.
On Appellant's Petition for Discretionary Review from the First Court of Appeals Harris County.
OPINION
I agree with the Court that we should refuse the appellant's petition for discretionary review. I write separately to explain my reasons for doing so. The appellant pleaded guilty to first-degree felony theft, and was sentenced to twenty-five years' imprisonment and a $10,000 fine. The trial court certified that the appellant had a right to appeal. The day after the appellant was sentenced, her trial counsel was allowed to withdraw. The appellant filed a pro se notice of appeal twelve days after the filing deadline, without attaching a motion for extension of time. The trial court appointed appellate counsel two weeks after the notice of appeal was filed. The Court of Appeals dismissed the appeal for lack of jurisdiction, citing Olivo v. State. The Court of Appeals was correct in doing so. The late notice of appeal without a motion for extension of time did not vest the Court of Appeals with jurisdiction of the case. And without jurisdiction, the Court of Appeals could not suspend the Rules of Appellate Procedure. I understand the appellant's frustration. The record indicates that the lateness of her notice of appeal was through no fault of her own. The appellant is not without a remedy, however. She may file an application for writ of habeas corpus under Code of Criminal Procedure Article 11.07. With these comments, I join the Court in refusing the appellant's petition for discretionary review.
Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996); see Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (holding that the amendment to Rule of Appellate Procedure 2 did not alter the policy requiring that a motion for extension of time be filed with an untimely notice of appeal to vest the court of appeals with jurisdiction).
Ibid.