Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-13-00073-CR

Toribio QUINTERO,

Appellant

v.

The STATE of Texas,

Appellee

From the 147th District Court, Travis County, Texas

Trial Court No. D-1-DC-12-200528

Honorable Bert Richardson, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 20, 2013

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed sentence in the underlying cause on September 28, 2012. 

Because appellant did not file a motion for new trial, the notice of appeal was due to be filed 

October 29, 2012. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice 

of appeal was due on November 13, 2012. TEX. R. APP. P. 26.3. Appellant filed a notice of 

appeal and a motion for extension of time on December 12, 2012. 

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See 

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be 
04-13-00073-CR

- 2 -

considered timely so as to invoke a court of appeals’ jurisdiction if (1) it is filed within fifteen 

days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of 

appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the 

court of appeals grants the motion for extension of time. See id. 

Because the notice of appeal appeared to be untimely, this court issued an order directing 

appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Our 

order noted that appellant’s motion for extension of time referred to a statement contained in a 

motion to withdraw filed by trial counsel stating appellant should be appointed new counsel on 

appeal. We further noted that the motion did not contain a statement of appellant’s desire to 

appeal. Finally, we noted that although the Texas Court of Criminal Appeals could consider the 

language in trial counsel’s motion to withdraw in determining whether appellant may be entitled 

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

1991) (out-of-time appeal from final felony conviction may be sought by filing a writ of habeas 

corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure), this court did not 

construe the motion as a notice of appeal. See Roberts v. State, 270 S.W.3d 662, 665 (Tex. 

App.—San Antonio 2008, no pet.); Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—San 

Antonio 1996, no pet.).

In his response to our show cause order, appellant first argues that trial counsel’s motion 

to withdraw could be construed as a notice of appeal. For the reasons previously mentioned in 

our show cause order and noted above, we do not construe the motion as a notice of appeal. See 

Roberts, 270 S.W.3d at 665, Rivera, 940 S.W.2d at 149. Appellant also argues that this court has 

the authority to grant an out-of-time appeal, citing Jones v. State, 98 S.W.3d 700, 703–04 (Tex. 

Crim. App. 2003). In Jones, the Texas Court of Criminal Appeals was considering an appeal 

from an intermediate appellate court’s affirmance of a trial court’s order denying a habeas 
04-13-00073-CR

- 3 -

application. 98 S.W.3d at 702. Although the offense to which the habeas related appears to be a 

felony sexual assault, the opinion does not address the basis for the intermediate appellate court’s 

jurisdiction over the appeal. Nothing in the opinion, however, detracts from the Texas Court of 

Criminal Appeals’ unequivocal statement in Ater that it is the only court with jurisdiction to 

consider habeas relief in final post-conviction felony proceedings. 802 S.W.2d at 243; see also

TEX. CODE CRIM. PROC. art. 11.07. Accordingly, we lack jurisdiction to grant appellant an outof-time appeal. Because this court lacks jurisdiction to consider appellant’s untimely filed 

appeal, we dismiss the appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH