### IN THE TENTH COURT OF APPEALS
No. 10 - 15 - 00327 - CR BRANDON WAYNE MOORE , Appellant v. THE STATE OF TEXAS , Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 14
- 01424 - CRF
- 272

MEMORANDUM OPINION
In this matter, appellant, Brandon Wayne Moore, was convicted of the offense of aggravated robbery in Brazos County, Texas, on March 9, 2015. See T EX
. P ENAL C ODE A NN
. § 29.03 (West 2011). On September 28, 2015, this Court received a motion from Moore req uesting an out

- of

- time appeal. 1 In his motion, Moore indicates that he

1 Apparently, Moore filed a motion to dismiss his appeal in the El Paso Court of Appeals, which was granted on April 24, 2015. Additionally, Moore originally filed his motion for an out

- of

- time appealMoore v. State Page 2

originally waived his right to appeal; however, he now wants to appeal his conviction
because he believes that his trial counsel was ineffective. The jurisdiction of the appellate cour t must be legally invoked, and when it is not legally invoked, the power of the court to act is as absent as if it did not exists. Olivo v.
State , 918 S.W.2d 519, 523 (Tex. Crim. App. 1996); see Slaton v. State , 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); see also Boyd v. State , 971 S.W.2d 603, 605 (Tex. App.

— Dallas 1998, no pet.). To legally invoke our jurisdiction, the appellant must file the notice of appeal within the time provided by the rules of appellate procedure. See Slaton , 981
S.W .2d at 210; Olivo , 918 S.W.2d a t 523; Boyd , 971 S.W.2d at 605. That is, the appellant
must either: (1) file a notice of appeal within the period provided by rule 26.2(a); or (2)
file a notice of appeal in the trial court within fifteen days after the dat e it was due and file a proper extension motion in the appellate court within the same fifteen

- day period.
See T EX
. R. A PP
. P. 26.2(a), 26.3; Olivo , 918 S.W.2d a t 523; Boyd , 971 S.W.2d at 605. In this case, neither the notice of appeal nor the extension m otion was filed in this
Court within the tim e period provided by rule 26.3. See T EX
. R. A PP
. P. 26.2, 26.3. Therefore, we have no jurisdiction to dispose of the purported appeal in any manner

with the Thirteenth Court of Appeals. The Thirteenth C ourt of Appeals subsequently forwarded Moore’s motion to this Court.Moore v. State Page 3

other than to dismiss it for want of jurisdiction. 2 See Olivo , 918 S.W.2d a t 523; Boyd , 971
S.W.2d at 605. Accordingly, we deny Moore’s motion requesting an out

- of

- time appeal, and w e dismiss the appeal for want of jurisdiction. 3

AL SCOGGINS Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Dismissed Opinion delivered and filed October 8, 2015 Do not publish [CR25]

2 We also note that the Court of Criminal Appeals has exclusive jurisdiction in a felony case to grant an out

- of

- time appeal. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 11.07 (West 2015); see a lso Taylor v. State , No. 12

- 06

- 00119

- CR, 2006 Tex. App. LEXIS 4018, at *2 n.1 (Tex. App.

— Tyler May 10, 2006, no pet.) (mem. op., not designated for publication) (per curiam). In other words, this Court does not have the authority to grant an out

- of

- time a ppeal. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 11.07 (West 2015); see also Taylor , 2006 Tex. App. LEXIS 4018, at *2 n.1.

3 A motion for rehearing may be filed within 15 days after the judgment of this Court is rendered. See T EX
. R. A PP
. P. 49.1. If the app ellant desires to have the decision of this Court reviewed by filing a petition for discretionary review, that petition must be filed with the Court of Criminal Appeals within 30 days after either the day this Court’s judgment was rendered or the day the l ast timely motion for rehearing was overruled by this Court. See id. at R. 68.2(a).