                                    NO. 07-09-0074-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                      APRIL 15, 2009

                          ______________________________


                                JAMES LYNN CAMPBELL,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                 Appellee

                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 57,233-A; HON. HAL MINER, PRESIDING
                        _______________________________

                                    Dismissal
                          _______________________________

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

       James Lynn Campbell appeals from his conviction of possession of a controlled

substance. By letter dated March 20, 2009, we informed appellant that it appeared his

notice of appeal was untimely and he had ten days to provide us with any information that

would be necessary to our determination of jurisdiction. Appellant responded by informing

us that the mailbox rule would be sufficient to establish that jurisdiction.
        Sentence was imposed on November 18, 2008. Appellant then had thirty days in

which to file a motion for new trial. TEX . R. APP. P. 21.4(a). His pro se motion for new trial

was not filed until December 31, 2008, and his pro se notice of appeal was filed on March

3, 2009. If appellant’s motion for new trial was untimely, then so was his notice of appeal.

TEX . R. CIV. P. 26.2 (extending the time for filing a notice of appeal if a motion for new trial

is filed).1

        The mailbox rule provides that any document sent to the proper clerk by first class

postage in an envelope properly addressed and stamped is timely if deposited in the mail

on or before the last day for filing and received by the clerk not more than ten days late.

TEX . R. CIV . P. 5. 2 In civil cases, filing by an indigent inmate is deemed complete when

given to prison authorities. Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004). This rule

has been extended to indigent criminal defendants who are acting pro se. See Villarreal

v. State, 199 S.W.3d 30, 31 (Tex. App.–San Antonio 2006, no pet.). Appellant’s certificate

of mailing indicates that he gave the motion for new trial to prison authorities on December

18, 2008, thereby meeting the first portion of the mailbox rule. However, the file-stamp

date of the district clerk is December 31, 2008. Appellant has not provided us with

anything nor have we found anything in the record indicating that it was received by the




        1
           Appellant also relies upon the m ailbox rule to show that his pro se notice of appeal was tim ely. The
certificate of service shows it was delivered to prison authorities on February 12, 2009.

        2
           A legible postm ark affixed by the United States Postal Service is prim a facie evidence of the date
of m ailing. T EX . R. C IV . P. 5. Here, the postm ark is not legible.

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clerk within ten days of December 18 as required by Rule 5.3 That being so, the mailbox

rule is unavailing to appellant.

        Accordingly, because the notice of appeal was untimely filed, we dismiss for want

of jurisdiction.4



                                                             Brian Quinn
                                                             Chief Justice



Do not publish.




        3
       The deadline would be Decem ber 28, which was a Sunday, so the deadline would be extended to
Decem ber 29.

        4
             The appropriate vehicle for seeking an out-of-tim e appeal from a final felony conviction is by writ of
habeas corpus pursuant to Article 11.07 of the Texas Code of Crim inal Procedure. See T EX . C OD E C R IM .
P R O C . A N N . art. 11.07 (Vernon Supp. 2008).

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