Johnny M. Gonzales v. State of Texas--Appeal from 198th Judicial District Court of Kerr County

No. 04-01-00307-CR

Johnny M. GONZALES,

Appellant

v.

The STATE of Texas,

Appellee

From the 198th Judicial District Court, Kerr County, Texas

Trial Court No. 573-Q

Honorable V. Murray Jordan, Judge Presiding

PER CURIAM

Sitting: Alma L. L pez, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: July 25, 2001

DISMISSED

On July 24, 1981, the appellant, Johnny M. Gonzales, pled guilty to the offense of engaging in organized criminal activity, and the trial court assessed punishment at ten years probation. On August 3, 1983, the trial court discharged appellant from probation and released him from all penalties and disabilities resulting from the judgment of conviction. On July 10, 2000, the trial court denied appellant's motion to vacate, set aside or dismiss his sentence. On May 2, 2001, appellant filed a notice of appeal from the July 10, 2000 order. Because it did not appear that this court had jurisdiction to consider the merits of an appeal from an order signed by the trial court almost one year ago, on June 15, 2001, this court ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.

On June 26, 2001, appellant responded, explaining he had filed his notice of appeal on July 15, 2000 and sent four copies of the notice of appeal to this court. Among the attachments to his response is an April 10, 2001 memo from the Kerr County District Clerk stating she had researched her files and could not find a copy of his notice of appeal. A review of the records in this court reveals that no notice of appeal was filed before May 2, 2001. Appellant has not provided proof that he mailed the notices of appeal to this court or the district court clerk in July 2000.

This court lacks jurisdiction over an appeal of a criminal conviction in the absence of a timely, written notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Shute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from felony conviction may be sought by filing a writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07). This appeal is therefore dismissed for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH