TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00071-CR

Ramon Salazar, Appellant v. The State of Texas, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. A-94-0484-S, HONORABLE CURT F. STEIB, JUDGE PRESIDING

Ramon Salazar was convicted of murder in the above-referenced cause. His conviction was affirmed by this Court in a judgment that is now final. See Salazar v. State, No. 03-96-00016-CR (Tex. App.— Austin 1997, no pet.) (not designated for publication). On January 22, 2001, Salazar filed a motion in the district court asking for an evidentiary hearing to offer proof of facts pursuant to code of criminal procedure article 40.001. Tex. Code Crim. Proc. Ann. art. 40.001 (West Supp. 2001). The court refused to conduct the requested hearing and Salazar gave notice of appeal.

Article 40. 001 authorizes a new trial on the ground of newly discovered material evidence. A motion for new trial must be filed no later than thirty days after sentencing. Tex. R. App. P. 21.4(a). Appellant’s motion was untimely and the district court properly concluded that it did not have jurisdiction to act. At this point, Salazar must apply for a post-conviction writ of habeas corpus pursuant to article 11. 07. See Tex. Code Crim. Proc. Ann. art. 11. 07 (West Supp. 2001). All pending motions are overruled.

The district court’s order is affirmed.

__________________________________________ Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Yeakel and Patterson Affirmed Filed: March 29, 2001 Do Not Publish