TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN








NO. 03-95-00575-CR











Wayne Williford, Appellant





v.





The State of Texas, Appellee











FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT


NO. B-94-0738-S, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING











PER CURIAM




	A jury found appellant guilty of burglary of a habitation and assessed punishment
at imprisonment for twenty years.  Sentence was imposed in open court on June 23, 1995.  A
motion for new trial was timely filed and subsequently overruled by operation of law.  Notice of
appeal was filed on September 25, 1995.

	Appellant's notice of appeal was not timely.  Tex. R. App. P. 41(b)(1).  Although
the notice was filed within the fifteen-day grace period, no motion for extension of time to file
notice of appeal was presented to this Court.  Tex. R. App. P. 41(b)(2).  In his response to our
notice that the notice of appeal was untimely, counsel for appellant stated that he was told by trial
counsel that notice of appeal had been filed and did not discover that this was not so until
September 25.  Counsel does not explain why he did not request an extension of time pursuant
to rule 41(b)(2).

	Without a timely filed notice of appeal, this Court is without jurisdiction.  Rodarte
v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim.
App. 1988).  In a recent opinion, the Court of Criminal Appeals held that courts of appeals may
not employ rule 2(b) of the Texas Rules of Appellate Procedure to suspend appellate time limits. 
Garza v. State, 896 S.W.2d 192 (Tex. Crim. App. 1995).  Thus, while good cause for doing so
is shown, we may not suspend the requirements of rule 41(b)(1) and deem appellant's notice of
appeal timely filed.  Counsel asks this Court to consider appellant's affidavit of indigence and
request for appointment of counsel on appeal as a notice of appeal.  Rule 40(b)(1), however,
demands "an independent written notice of appeal."  Shute, 744 S.W.2d at 97.  Counsel also asks
us to treat the untimely notice of appeal as an "improperly titled" motion for extension of time. 
But this "motion" was not presented to us within the time prescribed by rule 41(b)(2) and under
Garza this time cannot by extended.

	But for the opinion in Garza, we would suspend the appellate time limit and permit
this appeal to proceed.  In light of Garza, however, appellant must await this Court's mandate of
dismissal, after which he may file a post-conviction application for writ of habeas corpus.  Tex.
Code Crim. Proc. Ann. art. 11.07, § 2 (West Supp. 1995).  The Court of Criminal Appeals will
then almost certainly grant appellant an out-of-time appeal.

	The appeal is dismissed.







Before Chief Justice Carroll, Justices Jones and B. A. Smith

Dismissed for Want of Jurisdiction

Filed:  October 25, 1995

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