      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                       NO. 03-08-00635-CR



                                 Edgar R. Hernandez, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
      NO. D-1-DC-04-302732, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               We overrule Hernandez’s motion for rehearing, withdraw our opinion and judgment

issued January 9, 2009, and substitute the following in its place.

               Edgar Hernandez seeks to appeal from a judgment of conviction for indecency with

a child by contact. Sentence was imposed on April 9, 2007. No motion for new trial was filed. The

deadline for perfecting appeal was therefore May 9, 2007. See Tex. R. App. P. 26.2(a)(1). Notice

of appeal was filed on October 9, 2008. While Hernandez filed a motion for an out-of-time appeal

in the trial court on September 26, 2008, neither this Court nor the trial court has authority to grant

an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App.

1991) (out-of-time appeal from final felony conviction may be sought by filing writ of habeas corpus
with court of criminal appeals pursuant to article 11.07 of code of criminal procedure). Hernandez

does not contend that the court of criminal appeals has granted him an out-of-time appeal.

               Under the circumstances, we lack jurisdiction to dispose of the purported appeal in

any manner other than by dismissing it for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208,

210 (Tex. Crim. App.1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). The

appeal is dismissed.



                                              ___________________________________________

                                              Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Dismissed for Want of Jurisdiction

Filed: March 5, 2009

Do Not Publish




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