Dustin Merle Whaley v. the State of Texas ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-21-00132-CR
________________________
DUSTIN MERLE WHALEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 47th District Court
Potter County, Texas
Trial Court No. 70,323-A; Honorable Dan L. Schaap, Presiding
June 16, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Pursuant to an open plea of guilty, Appellant, Dustin Merle Whaley, was convicted
of evading arrest with a vehicle 1 and sentenced to six years confinement. We affirmed
his conviction in Whaley v. State, No. 07-16-00126-CR, 2018 Tex. App. LEXIS 5612, at
*7 (Tex. App.—Amarillo July 24, 2018, no pet.) (mem. op., not designated for publication).
1 See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2017).
On June 8, 2021, Appellant filed a notice with this court requesting a new appeal and the
appointment appellate counsel. We dismiss the purported appeal for want of jurisdiction.
Appellant was sentenced on March 22, 2016. Because Appellant timely filed a
motion for new trial, his notice of appeal was due within ninety days after sentence was
imposed, i.e., by June 20, 2016. See TEX. R. APP. P. 26.2(a)(2). Appellant filed the instant
notice of appeal on June 8, 2021. Because the timely filing of a written notice of appeal
is a jurisdictional prerequisite to hearing an appeal, we have no option but to dismiss the
untimely appeal for want of jurisdiction. See Castillo v. State, 369 S.W.3d 196, 198 (Tex.
Crim. App. 2012).
Accordingly, we deny Appellant’s request for appointed counsel and dismiss this
appeal. 2
Per Curiam
Do not publish.
2 In his notice of appeal, Appellant states that he previously received ineffective assistance of
appellate counsel and, therefore, seeks a new appeal. Although this court has no authority to grant such a
request, Appellant may be entitled to relief by filing an application for writ of habeas corpus returnable to
the Court of Criminal Appeals. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West 2015).
2