NO. 07-03-0541-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D FEBRUARY

4, 2004

______________________________ BRUCE D. CARRINGTON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 3 64TH DI STRICT COURT OF LU BBOCK COU NTY; NO. 2003-402,456; HONORABLE BR ADLEY UND ERWOOD, JUDGE

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ. MEMORA NDUM OPIN ION Fo l lowing his pl ea of not gu ilty, a ppe llan t Bru ce D. C arrin gton was con victe d by a jury of aggravated robbery

and punishment

was asses sed at 30 year s confinement. Based upon the rational e expressed herein, the appeal is dismiss ed for want of jurisdiction.2

Appellant

was sentenced in open court on November 10, 2003, and no motion for new tri al was fi led. Thus , thedead lin e fo r filing t he no tice of appeal was December 10, 2003. Tex. R. App. P. 26.2(a)( 1). The 15-day windo w ext ended the deadline to file the notice and motion for exte nsion of time to De cember 25, 2003 (ex tended to December

29, 2003, due to Christmas ho lidays). On December 23, 2003, ap pellant timely filed in this Court a motion for extensio n of time in which to file the notice of appea l; however, the notice of appeal was not actua lly filed with the Lubbock County Distric t Clerk unt il January

6, 2004, wel l outside the 15 -day extension period. By

letter dated Janua ry 13, 2004, this Court requested that appellant show cause wit hi n ten days w hy the appeal should not be dis missed for want of jurisdict ion. Appellant

did not respond. In a criminal case, when no mot ion for new t rial is fil ed, the notice of appeal must be filed wit hin 30 days after the date sentence is imposed. Tex. R. App. P . 26.2(a)(1) . The time within which to fil e the notice may be enlarged if, within 15 days after the deadline for filing the notice, the part y files the notice of appe al and a motion complying with Rule 10.5(b) of the Texas Rules of Appel late Procedur e. Tex. R. A pp. P. 26.3. Alate notice of appeal may be considered timely so as to invoke our jurisdiction if the noti ce an d a mo tion for e xtens ion o f tim e are file d with in 15 days of the deadline and the motion is granted. See Pickens v . State, 105 S.W.3d 746, 748 (Tex.App.–Austi n 2003, no pet.), citi ng Olivo v. State, 9 18 S.W.3d 51 9, 522 (T ex.Cr.App. 1999). Rule 2 of the3

Texas Rules of

Appellate Procedure, whi ch authoriz es this Cour t to suspend the operat ion of a rule for g ood cause, doesnot permit the s uspension of the time limit for perfect ing an appeal. Slato n v. State, 981 S.W.3d 208, 209-10 (Tex .Cr.App. 1998). Thus, we cannot create juri sdiction w here none exi sts. Id. Appellant

may be entitled to an out-of-time appeal by filing a post-conv iction w rit of habeas corpus returnable to the Texas Court of Cri minal Appeals. See Tex. C ode Cr im. Proc. Ann. art. 11.07, § 3 (Vernon Supp. 2004); see also Ex parte Gar cia, 988 S.W.2d 240 (Tex.Cr.App. 1999). Acco rdin gly, we dismiss this appeal for want of jurisdiction. Our disposition ofthis matter renders appel lant’s motion for extensio n of time in wh ich to file hi s notice of appeal moot. Don H. Reavis Justice Do not publish

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