                                   NO. 07-06-0417-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 NOVEMBER 6, 2006
                          ______________________________

                         ESEQUIEL GARCIA, JR., APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

                FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2005-408683; HONORABLE CECIL PURYEAR, JUDGE
                         _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant, Esequiel Garcia, Jr., seeks to appeal his conviction for the offense of

Retaliation, enhanced by two prior felony convictions. We dismiss the appeal for want of

jurisdiction.


       On April 19, 2005, a jury returned a verdict finding appellant guilty of the offense of

Retaliation. The trial court found that the allegations of two prior felony convictions were

true. On May 2, 2005, the trial court imposed a sentence of ten years incarceration in the

Institutional Division of the Texas Department of Criminal Justice.
       On September 20, 2006, appellant filed Notice of Appeal. The trial court has

certified that appellant has the right to appeal.


       The Rules of Appellate Procedure do not establish the jurisdiction of courts of

appeals, but do provide procedures which must be followed to invoke a court’s jurisdiction

over a particular appeal. Olivo v. State, 918 S.W .2d 519, 523 (Tex.Crim.App. 1996). If the

jurisdiction of a court of appeals is not properly invoked, the power of the appellate court to

act is as absent as if it did not exist and the appeal will be dismissed for lack of jurisdiction.

See State v. Riewe, 13 S.W .3d 408, 413-14 (Tex.Crim .App. 2000); Olivo, 918 S.W .2d at

523.


       If an appeal is not timely perfected, a court of appeals has no jurisdiction to address

the merits of the appeal and can take no action other than to dismiss the appeal. Slaton v.

State, 981 S.W .2d 208, 210 (Tex.Crim.App. 1998). Texas Rule of Appellate Procedure 26.2

requires a notice of appeal be filed within 30 days after sentence is imposed or within 90

days after sentence is imposed if the defendant timely files a motion for new trial. T EX. R.

A PP . P. 26.2(a).


       In the present case, even assuming that appellant timely filed a motion for new trial,

his notice of appeal would have been due by August 1, 2005. Thus, appellant’s notice of

appeal was filed over a year after the last possible due date and is untimely. Appellant’s

failure to timely file notice of appeal prevents this court from having jurisdiction over the




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appeal. Accordingly, the appeal is dismissed for want of jurisdiction.1 TEX . R. APP. P. 39.8,

40.2, 43.2(f).




                                           Mackey K. Hancock
                                               Justice




Do not publish.




       1
        Appellant may be entitled to an out-of-time appeal by filing a post-conviction writ
of habeas corpus returnable to the Texas Court of Criminal Appeals. See TEX . CODE CRIM .
PROC . ANN . art. 11.07 (Vernon 2005); see also Ater v. Eighth Court of Appeals, 802 S.W.2d
241 (Tex.Crim.App. 1991).

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