David Wayne Black v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00145-CR
___________________________
DAVID WAYNE BLACK, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 4
Tarrant County, Texas
Trial Court No. 0976642R
Before Sudderth, C.J.; Kerr and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant David Wayne Black attempts to appeal his convictions for two
counts of aggravated assault with a deadly weapon and one count of violation of a
protective order. Although the trial court imposed his sentences on October 5, 2005,
making any notice of appeal due November 4, 2005, he filed a notice of out-of-time
appeal on October 20, 2021, seeking an extension to appeal and arguing that he may
collaterally attack his convictions because the sentences are void. See Tex. R. App. P.
26.2(a), 26.3. We notified Black that we questioned our jurisdiction over his appeal
given that his notice of appeal and extension request were filed sixteen years after his
sentences had been imposed. See Tex. R. App. P. 44.3. Black responded but other
than reasserting his need for an extension, he has not further addressed our
jurisdiction.
If a notice of appeal is not timely filed, we have no choice but to dismiss the
appeal for want of jurisdiction. Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App.
2012) (citing Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996)); cf. Mizell v.
State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (holding trial or appellate court
may correct illegal sentence if the court “otherwise has jurisdiction” over the
conviction). Black’s exclusive remedy at this point is by way of a post-conviction writ
of habeas corpus, not a direct appeal. See Tex. Code Crim. Proc. Ann. art. 11.07, § 3;
see also id. § 5 (providing that after final conviction, habeas corpus procedure is
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“exclusive”). Thus, we dismiss this appeal for want of jurisdiction. See Tex. R. App.
P. 43.2(f).
/s/ Brian Walker
Brian Walker
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 3, 2022
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