Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾

Appellant, Edward Sanchez Hinajas, appeals his conviction for Aggravated Sexual Assault of a Child. We dismiss the proceeding for lack of jurisdiction.

The judgment indicates that sentence was imposed on March 13, 2003. Appellant then filed a document purporting to be a notice of appeal on May 22, 2003. No motion for new trial was filed. To be timely, a notice of appeal must be filed within 30 days after the sentence is imposed or suspended in open court or within 90 days after that date if a motion for new trial is filed. Tex. R. App. P. 26.2(a). Thus, appellant's notice of appeal was due to be filed on or about April 14, 2003, but was not filed until May 22, 2003. Furthermore, he did not move for an extension of the deadline.

A timely filed notice of appeal is essential to invoke our appellate jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If the notice is not timely, then the court of appeals can take no action other than to dismiss the proceeding. Id. at 523. Because appellant's notice of appeal was untimely filed, we have no jurisdiction to consider the appeal.

Accordingly, the appeal is dismissed.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

a brief.

Before allowing counsel to withdraw, we must first satisfy ourselves that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal, and then we must determine whether counsel has properly concluded that the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Counsel lists his two arguable points as: (1) whether there is legally and factually sufficient evidence for the trial court to find appellant violated the terms and conditions of his community supervision; and 2) whether the confusion over the range of punishment and the degree of felony of the offense constitutes reversible error.

We have made an independent examination of the record, including appellant's written stipulation that the allegations contained in the application to revoke his community supervision "are true and correct." See Penson v. Ohio, 488 U.S.75, 82-83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no grounds for reversal and agree with counsel that the appeal is without merit and is frivolous. Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974).

Accordingly, counsel's request to withdraw is granted and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).