TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-08-00635-CR
Edgar R. Hernandez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-04-302732, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
MEMORANDUM OPINION
We overrule Hernandez’s motion for rehearing, withdraw our opinion and judgment
issued January 9, 2009, and substitute the following in its place.
Edgar Hernandez seeks to appeal from a judgment of conviction for indecency with
a child by contact. Sentence was imposed on April 9, 2007. No motion for new trial was filed. The
deadline for perfecting appeal was therefore May 9, 2007. See Tex. R. App. P. 26.2(a)(1). Notice
of appeal was filed on October 9, 2008. While Hernandez filed a motion for an out-of-time appeal
in the trial court on September 26, 2008, neither this Court nor the trial court has authority to grant
an out-of-time appeal. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App.
1991) (out-of-time appeal from final felony conviction may be sought by filing writ of habeas corpus
with court of criminal appeals pursuant to article 11.07 of code of criminal procedure). Hernandez
does not contend that the court of criminal appeals has granted him an out-of-time appeal.
Under the circumstances, we lack jurisdiction to dispose of the purported appeal in
any manner other than by dismissing it for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208,
210 (Tex. Crim. App.1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996). The
appeal is dismissed.
___________________________________________
Diane M. Henson, Justice
Before Justices Patterson, Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: March 5, 2009
Do Not Publish
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