

NO. 07-11-00095-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL D
 

APRIL
20, 2011
 

 
ALTON RAY BURNS, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 320TH DISTRICT COURT OF
POTTER COUNTY;
 
NO. 60,552-D; HONORABLE DON R. EMERSON, JUDGE

 

 
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
 
Appellant
Alton Ray Burns attempts to appeal his conviction for possession with intent to
deliver a controlled substance, enhanced, and sentence of twenty-five years in
prison.  Sentence was imposed on November
29, 2010, and appellant filed a notice of appeal on February 18, 2011.  The notice included a request for additional
time to perfect the appeal.  Appellant
did not file a motion for new trial.  
By letter, we notified appellant his
notice of appeal appeared untimely thus depriving us of appellate
jurisdiction.  We afforded him an
opportunity to file documents or matters he considered necessary for
determination of our jurisdiction. 
Appellant filed a one-page response essentially stating on March 28,
2011, he made application for a writ of habeas corpus under article 11.07 of
the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 11.07
(West Supp. 2010).
Our appellate jurisdiction is triggered
through a timely notice of appeal.  Olivo v. State, 918 S.W.2d
519, 522 (Tex.Crim.App. 1996).  Rule of Appellate Procedure 26.2(a) requires
a notice of appeal be filed within 30 days after the day sentence is imposed in
open court or within 90 days after imposition of the sentence if a timely
motion for new trial is filed.  Tex. R.
App. P. 26.2(a)(1), (2).
The rules of appellate procedure
provide for an extension of time to file the notice of appeal if “such notice
is filed within fifteen days after the last day allowed and within the same
period a motion is filed in the court of appeals reasonably explaining the need
for such extension.”  Tex. R. App. P.
26.3.  Both the notice of appeal and the
extension motion must be filed within the time provided by the rules.  See
Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.
1998); Olivo, 918 S.W.2d at 522.  
Because appellant did not file a
motion for new trial, his notice of appeal was due within thirty days after the
date sentence was imposed in open court. 
This deadline could have been extended to forty-five days of the date
sentence was imposed if within that period the notice of appeal and a motion
for extension of time complying with the requirements of Rule of Appellate
Procedure 26.3 were filed.  Appellant’s
notice of appeal and request for extension of time were filed more than sixty
days after imposition of sentence and were therefore untimely.  Our appellate jurisdiction has not been
invoked.  
Consequently, we dismiss the appeal
for want of jurisdiction.[1]  
 
 
                                                                                                James
T. Campbell
                                                                                                            Justice
 
Do not
publish. 
 




[1] We do not reach the second issue called to
appellant’s attention by our letter.  The
trial court’s certification of appellant’s right to appeal states this “is a
plea-bargain case and the defendant has no right to appeal [and] the defendant
has waived the right of appeal.”  Tex. R.
App. P. 25.2(a)(2),(d).


