Opinion issued February 21, 2013




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00300-CR
                            ———————————
                      CHARLES H. FOWLER, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1326997


                          MEMORANDUM OPINION

      Appellant, Charles H. Fowler, attempts to appeal from the trial court’s order

denying the relief requested in his application for writ of habeas corpus. The State

has filed a motion to dismiss the appeal for want of jurisdiction. We grant the

motion and dismiss the appeal.
                                     Background

      On November 10, 2011, appellant filed an application for writ of habeas

corpus, claiming that his conviction for the misdemeanor offense of possession of

dangerous drugs in cause 1005770 is void. The trial court signed an order denying

relief on January 19, 2012. Appellant filed a motion for new trial on February 17,

2012 and a notice of appeal on March 16, 2012.

      The State filed a motion to dismiss the appeal on January 3, 2013. In its

motion, the State argues that a motion for new trial does not extend the deadline

for filing a notice of appeal from an order denying relief in a habeas proceeding

and appellant’s notice of appeal, filed 57 days after the order was signed, was

therefore untimely.

      Appellant filed a response on January 10, 2013. In his response, appellant

argues that this case is an original proceeding, not a criminal action, and his motion

for new trial therefore extended the deadline for filing a notice of appeal to 90 days

after the judgment was signed. Appellant alternatively argues that the trial court’s

order did not become final and appealable until March 16, 2012, when the trial

court signed the certification of appellant’s right to appeal.

                                       Analysis

      An application for a writ of habeas corpus challenging a conviction in a

misdemeanor case is governed by article 11.09 of the Texas Code of Criminal


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Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.09 (West 2005); Ex parte

Tarango, 116 S.W.3d 201, 202 (Tex. App.—El Paso 2003, no pet.). And, while a

habeas proceeding in Texas is considered to be separate from the criminal

prosecution, “[s]uch proceedings are categorized as ‘criminal’ for jurisdictional

purposes, and the Texas Rules of Civil Procedure do not ordinarily apply.” Ex

parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004); see Aranda v. District

Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006); Tarango, 116 S.W.3d at 202–

03. Therefore, the time to perfect an appeal from an order in a habeas proceeding

is governed by Texas Rule of Appellate Procedure 26.2, not Rule 26.1. Compare

TEX. R. APP. P. 26.1 (governing deadline for filing notice of appeal in civil cases),

with TEX. R. APP. P. 26.2 (governing deadline in criminal cases).

      Under Rule 26.2(a)(1), a notice of appeal must be filed within 30 days after

sentence is imposed or suspended in open court or after the trial court enters an

appealable order. TEX. R. APP. P. 26.2(a)(1). The deadline is extended to 90 days

after a sentence is imposed or suspended in open court if the defendant timely files

a motion for new trial. TEX. R. APP. P. 26.2(a)(2). The deadline is not extended,

however, when a motion for new trial is filed after the trial court enters an

appealable order that does not impose or suspend a sentence. See id.; Ex parte

Roberts, No. 14-08-00575-CR, 2008 WL 3940738, *1 (Tex. App.—Houston [14th

Dist.] Aug. 21, 2008, pet. ref’d) (not designated for publication); Ex parte


                                         3
Delgado, 214 S.W.3d 56, 58 (Tex. App.—El Paso 2006, pet. ref’d); Welsh v. State,

108 S.W.3d 921, 922 (Tex. App.—Dallas 2003, no pet.). Although an order

granting or denying relief in a habeas proceeding is an appealable order, it involves

neither imposition nor suspension of a sentence. See Delgado, 214 S.W.3d at 58;

Tarango, 116 S.W.3d at 203. Therefore, a motion for new trial filed after a trial

court denies habeas corpus relief does not extend the appellate timetable under

Rule 26.2(a)(2), and the appellant’s notice of appeal remains due within 30 days

after the trial court enters the order denying relief. See TEX. R. APP. P. 26.2(a)(1),

(2); Delgado, 214 S.W.3d at 58; Welsh, 108 S.W.3d at 923.

      Here, the trial court entered an order denying appellant’s request for habeas

corpus relief on January 19, 2012. Appellant’s notice of appeal was therefore due

on February 21, 2012.1 See TEX. R. APP. P. 4.1(a), 26.2(a)(1). Appellant filed his

notice of appeal on March 16, 2012—24 days after the deadline.               Because

appellant’s notice of appeal was not timely, we lack jurisdiction over this appeal.

See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,

918 S.W.2d 519, 523 (Tex. Crim. App. 1996); Delgado, 214 S.W.3d at 58; Welsh,

108 S.W.3d at 923.



1
      Contrary to appellant’s argument, the order denying relief was final and
      appealable when entered by the trial court, regardless of when the trial court
      executed a certification of appellant’s right to appeal. See TEX. R. APP. P.
      25.2(a)(2), 25.2(d).
                                          4
      Accordingly, we dismiss the appeal. See TEX. R. APP. P. 43.2(f). We

dismiss any pending motions as moot.

                                 PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.


Do not publish. TEX. R. APP. P. 47.2(b).




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