                              NUMBER 13-05-690-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG
______________________________________________________________

SERGIO DANIEL GONZALES,                                                      Appellant,

                                            v.

THE STATE OF TEXAS,                                 Appellee.
____________________________________________________________

 On appeal from the 197th District Court of Cameron County, Texas.
______________________________________________________________

                        MEMORANDUM OPINION
            Before Chief Justices Yañez, Garza, and Benavides
                    Memorandum Opinion Per Curiam

       Appellant, Sergio Daniel Gonzales, was convicted of aggravated assault and

evading arrest. He timely filed his notice of appeal on November 2, 2005, together with a

motion for a free record. On November 29, the trial court denied appellant’s motion for a

free record. Appellant thereafter, on February 16, filed a separate notice of appeal of the
trial court’s denial of his motion for a free record. Currently before the Court is the State’s

motion to dismiss the appeal regarding a free record. According to the State, appellant’s

notice of appeal was untimely. We agree with the State, and accordingly, grant its motion

to dismiss appellant’s appeal of the trial court’s denial of his motion for a free record.

       A timely notice of appeal is required to invoke our jurisdiction. Slaton v. State, 981

S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Olivo v. State, 918 S.W.2d 519, 522

(Tex. Crim. App. 1996). The notice of appeal is timely if filed within thirty days after the

sentence is imposed or suspended in open court, or within ninety days after sentencing if

the defendant files a motion for a new trial. TEX . R. APP. P. 26.2(a); see Olivo, 918 S.W.2d

at 522.    We do not have jurisdiction over an appeal from an adverse indigence

determination when not filed in connection with a timely filed notice of appeal in an

underlying conviction. Everett v. State, 91 S.W.3d 386 (Tex. App.–Waco 2002, no pet.).

A separate notice of appeal is required to appeal the denial of indigency. Duncan v. State,

158 S.W.3d 606, 607 (Tex. App.–Waco 2005, no pet.); Nelson v. State, 6 S.W.3d 722

(Tex. App.–Waco 1999, order).

       We may consider a late notice of appeal where (1) it is filed within fifteen days of the

last day allowed for filing, (2) a motion for an extension of time is filed within the fifteen

days, and (3) we grant the motion. See TEX . R. APP. P. 26.3; see also Olivo, 918 S.W.2d

at 522.

       In the instant case, appellant’s notice of appeal of the indigency finding was untimely

and no motion for extension of time was filed within the requisite period. Because this




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court has no authority to allow the late filing of a notice of appeal except as provided by

Rule 26.3, the appeal must be dismissed. See Slaton, 981 S.W.2d at 210.

         Accordingly, the appeal of the trial court’s denial of a free record is DISMISSED for

lack of jurisdiction.1 Appellant’s appeal of his conviction is ORDERED severed and will be

assigned cause number 13-08-057-CR. The Clerk of this Court shall transfer all relevant

pleadings and records from this cause number to cause number 13-08-057-CR. Appellant

must request and pay or make arrangements to pay for preparing the appellate record, and

notify this Court of the date on which he has done so, within 30 days of the date of this

opinion. Otherwise, the appeal will be dismissed. See TEX . R. APP. P. 37.1, 44.3.

                                                                                 PER CURIAM

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

Memorandum Opinion delivered and
filed this the 29th day of May, 2008.




 The procedures for pursuing an out-of-tim e appeal are delineated in article 11.07 of the 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 2005); see also Olivo v. State, 918 S.W .2d
519, 525 n.8 (Tex. Crim . App. 1996).



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