                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-412-CR


DANIEL KEITH BROWN                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

                                     ------------

      Appellant Daniel Keith Brown attempts to appeal his conviction for injury

to a child with intent to cause bodily injury. In accordance with a plea bargain,

the trial court sentenced Brown to two years’ deferred adjudication community

supervision.2    The trial court imposed Brown’s sentence on September 29,


      1
          … See Tex. R. App. P. 47.4.
      2
        … The trial court’s certification of Brown’s right to appeal states that this
“is a plea-bargain case, and the defendant has NO right of appeal.”
2008. Brown did not file a motion for new trial, so his notice of appeal was

due October 29, 2008, but was filed November 10, 2008.3 See Tex. R. App.

P. 26.2(a) (requiring that notice of appeal be filed within thirty days after the

day sentence is imposed or within ninety days after the day sentence is

imposed if the defendant files a timely motion for new trial).

          On November 14, 2008, we notified Brown’s trial counsel of the apparent

untimeliness of the notice of appeal and stated that we would dismiss the

appeal unless we received a response showing grounds for continuing the

appeal. See Tex. R. App. P. 44.3. Brown’s counsel responded with a “Motion

to Withdraw as Counsel.” The motion did not address our November 14, 2008

letter.

          A notice of appeal that complies with the requirements of rule 26 is

essential to vest this court with jurisdiction. See Tex. R. App. P. 26.2(a);

Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). The Texas

Court of Criminal Appeals has expressly held that, without a timely filed notice

of appeal or motion for extension of time, we cannot exercise jurisdiction over

an appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996);

see also Slaton, 981 S.W.2d at 210. Because Brown did not timely file his




          3
              … Brown filed a pro se notice of appeal.

                                             2
notice of appeal, we do not have jurisdiction over this appeal. See Olivo, 918

S.W.2d at 522.

      Moreover, 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. White

v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). Therefore, because we

have no jurisdiction over this appeal, we do not consider Brown’s counsel’s

“Motion to Withdraw as Counsel.”        See id.; Jackson v. State, No. 07-02-

00283-CR, 2004 W L 66773, at *2 (Tex. App.—Amarillo Jan. 15, 2004, no

pet.) (mem. op., not designated for publication). Accordingly, we dismiss the

appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).




                                            PER CURIAM

PANEL: HOLMAN, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 23, 2008




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