Marcus DeLeon v. State ( 2018 )

NUMBER 13-18-00087-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
MARCUS DELEON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 156th District Court
of Live Oak County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Marcus DeLeon, proceeding pro se, attempted to perfect an appeal from
two orders rendered on October 6, 2017 which denied (1) appellant’s “Special Plea of
Jeopardy” on grounds that the trial court lacked jurisdiction, and (2) appellant’s motion for
the appointment of counsel. Appellant did not file his notice of appeal, which stated that
he was seeking an “out of time appeal,” until February 9, 2018. On February 14, 2018,
this Court notified appellant that it appeared that there was no appealable order, and that
the appeal would be dismissed if the defect was not corrected within ten days from the
date of receipt of the Court’s directive. In response, appellant argues that the orders
subject to review are appealable and offers explanations for the late filing of his notice of
appeal.
An appellate court has the obligation to determine its own jurisdiction. See
Ramirez v. State, 89 S.W.3d 222, 225 (Tex. App.—Corpus Christi 2002, no pet.);
Yarbrough v. State, 57 S.W.3d 611, 615 (Tex. App.—Texarkana 2001, pet. ref'd); see
also Laureles v. State, No. 13-13-00535-CR, 2014 WL 1669102, at *1 (Tex. App.—
Corpus Christi Apr. 24, 2014, no pet.) (mem. op., not designated for publication). A
defendant's notice of appeal must be filed within thirty days after the trial court enters an
appealable order. See TEX. R. APP. P. 26.2(a)(1). A notice of appeal which complies
with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely
perfected, a court of appeals does not obtain jurisdiction to address the merits of the
appeal. Id. Under such circumstances it can take no action other than to dismiss the
appeal. Id.
Generally, a state appellate court only has jurisdiction to consider an appeal by a
criminal defendant where there has been a final judgment of conviction. Workman v.
State, 343 S.W.2d 446, 447 (Tex. Crim. App. 1961); McKown v. State, 915 S.W.2d 160,
161 (Tex. App.—Fort Worth 1996, no pet.). Exceptions to the general rule include: (1)
certain appeals while on deferred adjudication community supervision, Kirk v. State, 942
S.W.2d 624, 625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to reduce
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bond, TEX. R. APP. P. 31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the
denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas
1998, no pet.); McKown, 915 S.W.2d at 161.
The Court, having examined and fully considered the notice of appeal and the
briefing filed by appellant, is of the opinion that there is not an appealable order and this
Court lacks jurisdiction over the matters herein. Our review of the documents before the
Court does not reveal any appealable orders entered by the trial court within thirty days
before the filing of appellant's notice of appeal. Accordingly, this appeal is DISMISSED
for lack of jurisdiction. Pending motions, if any, are likewise DISMISSED. Appellant
may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus
returnable to the Texas Court of Criminal Appeals; however, the availability of that remedy
is beyond the jurisdiction of this Court. See TEX. CODE CRIM. PROC. ANN. art. 11.07, §
3(a) (West, Westlaw through 2017 1st C.S.); Ater v. Eighth Ct. of Appeals, 802 S.W.2d
241, 243 (Tex. Crim. App. 1991) (orig. proceeding).
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of April, 2018.
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