
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 2-05-076-CR
  
  
GERALD 
ANTHONY WRIGHT                                                  APPELLANT
  
V.
   
THE 
STATE OF TEXAS                                                                  STATE
 
  
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FROM 
CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
 
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MEMORANDUM OPINION1 ON APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW
 
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        After 
reviewing Appellant’s petition for discretionary review, we modify our opinion 
and judgment in this appeal.  See Tex. R. App. P. 50.  We withdraw 
our April 14, 2005 memorandum opinion and judgment and substitute the following.
        On 
March 10, 2005 we notified Appellant, in accordance with Texas Rule of Appellate 
Procedure 42.3, that this court may not have jurisdiction over this appeal 
because it appeared the notice of appeal was not timely filed.  We stated 
that the appeal would be dismissed for want of jurisdiction unless Appellant or 
any party desiring to continue the appeal filed with the court on or before 
March 21, 2005 a response showing a reasonable explanation for the late filing 
of the notice of appeal.  See Tex. 
R. App. P. 10.5(b), 26.3(b), 42.3(a).  We have received an 
explanation, but nonetheless conclude that we lack jurisdiction over the appeal.
        The 
trial court signed its finding on Appellant’s motion for forensic DNA testing 
on January 5, 2005.  Appellant’s notice of appeal was due on February 4, 
2005.  Appellant filed a notice of appeal on March 1, 2005.  
Appellant, pro se, and Appellant’s counsel both responded to our March 10, 
2005 letter.  Appellant claims that counsel did not notify him of the trial 
court’s finding until February 9, 2005, and that Appellant mailed his notice 
of appeal on February 18, 2005—the fourteenth day after the last day allowed 
for filing.  A late notice of appeal may be considered timely so as to 
invoke a court of appeals's 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.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. 
App. 1996).  Appellant did not file a motion to extend time. See Tex. R. App. P. 26.3.  When a 
notice of appeal is filed within the fifteen-day period but no timely motion for 
extension of time is filed, the appellate court lacks jurisdiction.  Olivo, 
918 S.W.2d at 522.
        Therefore, 
it is the opinion of the court that this appeal should be dismissed for want of 
jurisdiction.2  See Tex. R. App. P. 42.3(a), 43.2(f).  
Accordingly, we dismiss the appeal.
  
  
                                                          PER 
CURIAM
 
  
 
PANEL 
D:   GARDNER, WALKER, and MCCOY, JJ.
 
DO 
NOT PUBLISH
Tex. R. App. P. 47.2(b)
 
DELIVERED: 
July 7, 2005


NOTES
1.  
See Tex. R. App. P. 47.4.
2.  
Although we have determined that we do not have jurisdiction over Appellant’s 
appeal, he is not without a remedy.  Appellant may be entitled to an 
out-of-time appeal, which may be granted by the Texas Court of Criminal 
Appeals.  The appropriate vehicle for seeking an out-of-time appeal is by 
writ of habeas corpus from the Texas Court of Criminal Appeals pursuant to 
article 11.07 of the code of criminal procedure.  See Tex. Code Crim. Proc. Ann. art. 11.07 
(Vernon 2005); Portley v. State, 89 S.W.3d 188, 189 (Tex. 
App.—Texarkana 2002, no pet.); Ashorn v. State, 77 S.W.3d 405, 409 
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Rivera v. State, 
940 S.W.2d 148, 149 (Tex. App.—San Antonio 1996, no pet.); George v. State, 
883 S.W.2d 250, 251 n.3 (Tex. App.—El Paso 1994, no pet.).  Furthermore, 
the denial of a meaningful appeal due to ineffective assistance of counsel is 
also a proper ground for habeas corpus relief.  Olivo, 918 S.W.2d at 
525 n.8.
