NO. 07-04-0551 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D APRIL 18, 2005

______________________________ CHARLE S BRA NDON, Appellant

v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 47 TH DISTRICT COURT OF POTTER COUN TY; NO. 47,417-A; HON. HAL MINER, PRESIDING

_______________________________ Opinion Regarding Dismissal

________________________________ Before QUINN, REAVIS, and CAMPB ELL, JJ. Beforeus lies the question of whe ther we have jurisdi ction over the attem pt of Charles Brandon to appeal his conviction. The record discloses that his notice of appeal
wasnot filed with the trial court clerk until November 22, 2004. It was due by Novem ber 18, 2004. To avoid dismissal, appellant contends, via his “Mot ion for Continuation o f Appeal,” that the notice w as timely becau se he had del ivered it to the trial court judge1 Attache d to the “Motion f or Continuati on of Appeal” is a copy ofa letter f rom tr ial counsel, dat ed

Nov ember 16, 20 04, to th e trial cou rt and reque sti ng the latte r to sign the enclosed notice of appeal and ce rt ify appellant’s right t o appeal. The trial court did so on November 18, 2004. Trial counsel, further, requested that the trial co urt file the notice with the “Distric t Clerk.” Appellant c oncedes that the notice was not fi led with the court cl erk until Nov ember 22, 2004. F urthermor e, he did not file a motion to extend the deadline by which to perf ect his appeal within 15 days f rom the dat e the notice was due. 2 before the deadline expired, even though the court clerk did not receive it until after the deadline lapsed. 1 W e dismiss the appeal for want of jurisdiction. Ruleof Appellate Procedure 25.2(c)(1)states that an ap pellant perfects his appeal byfiling a written notice“with the trial co urt clerk. ” T EX
. R. A PP
. P. 25.2(c)(1). At bar, t he notice was

filed w ith the tr ial court bef ore thedea dline , bu t ap pella nt d id no t fil e it with the trial court c lerkuntil after it lapsed. Thus, the notice wasuntimely. See Ovalle v. State, No. 05-97-00251-CR, 1997 WL 25 1967 (Te x. A pp.–Dallas May 15, 1997, pet. ref’d) (dismissing the appeal for want of jurisdiction even though th e lett er evincing the appell ant’s desire to appeal was filed with the court coordinator instead of the court c lerk); see also Mi

ller v. St ate , No. 10-03-008 9-CR, 2003 WL 2166 608 6 (T ex . A pp. –Waco J uly 9, 2003, pet. granted) (holding that even though notice w as given to the trial court on day of sentencing, it was

not timely filed w ith the clerk when it was received after notice was due). Appellant relies on Bi rmin gham Fi

re Ins. Co. v. American National Fire Ins. Co., 928 S.W.2d 226 (Tex. A pp.–Texarkana 1996 , no writ) and Mr. Pengui n Tuxedo Rent

al & Sal es
v. NCR Corporati

on, 787 S.W.2d 371 (Tex. 1990) as support for his con t ention that because the dist rict clerk is the agent of the trial court, the trial court m ust actually be the prin cipa l. So, the argument goes, by givi ng the tria l court noti ce, appell ant simply gave notice to the party to w hom notice was to be given i n the f irst place, t he p rinc ipal.3

Assum ing th e a ccu ra cy o f th os e t wo cases, w e nonetheless note that they invo lved civ il appeals. Our

s isnot of t hat ilk; it iscrim inal. Mo re im por tan tly, not

only are th e procedures gov ern ing c iv il appe als construed differently from those involving criminal appeals but also our Court of Crim inal Appeals requires strict com pliance with appellate procedu re governing criminal appeals. Olivo v. State , 9 18 S. W .2 d 5 19 , 5 24 -2 5 ( Te x. Cr i m. App. 1996); State v. Zavala, 17 S.W.3d 356, 357-58 (Tex. App.–C orpus Christi 2000, pet ref’d)

. Thus, w

e do not find either Birmi

ngham or Mr. Pe ng uin controlling. Though we haveno jurisdiction over the appeal, we w

ould admonish appellant that he ma y still be able to obtain reli ef by seeking an out of tim e appeal f

rom the Tex

as Cou rt of Criminal Appeals. Ater v. Ei ghth Court of Ap

peals, 802 S.W.2d 241 (Tex. Crim. App. 1991 ) (out-of-time appe al from final felony conviction m ay be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Crim inal Proce dure ). And, with that adm onishment, we deny appell ant’s motion to continue the appeal and dismiss the cause for w

ant of j urisdiction.

Pe r C ur i am Do not publish.