ELOY GONZALEZ DIAZ v. THE STATE OF TEXAS (2011)

OPINION

Opinion by Justice Myers

In one indictment, appellant was charged in five counts with sexual assault of a child and indecency with a child.   Appellant was convicted of the offenses alleged in Count 2, indecency with a child by contact, and Counts 3 and 5, indecency with a child by exposure.   For each count, the jury assessed punishment at ten years' imprisonment, probated for ten years, and a $10,000 fine.   The State later moved to revoke appellant's community supervision as to the convictions for Counts 2 and 3.¹ Following a hearing, the trial court revoked appellant's community supervision and assessed punishment at seven years' imprisonment for each count.   Sentence was imposed in open court on September 18, 2009 and no motion for new trial was filed;  therefore, appellant's notice of appeal was due by Monday, October 19, 2009.   See Tex.R.App. P. 4.1(a), 26.2(a)(1).

On February 16, 2010, appellant filed a notice of appeal, which was docketed as cause no.   05-10-00249-CR.   That appeal was dismissed for want of jurisdiction because the notice of appeal was untimely as to the September 18, 2009 sentencing date.   See Diaz v. State, No. 05-10-00249-CR (Tex.App.-Dallas Apr. 5, 2010, no pet.).   On January 13, 2011, appellant filed a new notice of appeal.   Nothing in the record before the Court reflects that appellant was granted an out-of-time appeal by the Texas Court of Criminal Appeals.   Because appellant's January 13, 2011 notice of appeal is untimely as to the September 18, 2009 sentencing, we have no jurisdiction over the appeal.   See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998) (per curiam).

We dismiss the appeal for want of jurisdiction.

FOOTNOTES

FN1. The State also moved to revoke community supervision as to Count 5, but later withdrew the motion..  FN1. The State also moved to revoke community supervision as to Count 5, but later withdrew the motion.

LANA MYERS JUSTICE