Robert Perez v. State ( 2014 )

NUMBER 13-13-00664-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
ROBERT PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the County Court at Law No. 1
of Victoria County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion Per Curiam
Appellant, Robert Perez, attempted to perfect an appeal from a conviction for
driving while intoxicated. We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on August 26, 2013, counsel filed a motion
for new trial on September 26, 2013, and notice of appeal was filed on November 26,
2013. On December 6, 2013, the Clerk of this Court notified appellant that it appeared
that the appeal was not timely perfected. Appellant was advised 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. Appellant has not filed a response to the Court’s directive.
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the day sentence is imposed or suspended
in open court unless a motion for new trial is timely filed. TEX. R. APP. P. 26.2(a)(1).
Where a timely motion for new trial has been filed, notice of appeal shall be filed within
ninety days after the sentence is imposed or suspended in open court. TEX. R. APP. P.
26.2(a)(2). The time within which to file the notice may be enlarged if, within fifteen days
after the deadline for filing the notice, the party files the notice of appeal and a motion
complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See TEX. R.
APP. P. 26.3.
Appellant timely filed a motion for new trial. Therefore, his notice of appeal was
due to have been filed on or before November 25, 20131. See TEX. R. APP. P. 26.2(a)(2).
Although appellant filed a notice of appeal within the fifteen day time period, he did not file
a motion for extension of time to file his notice of appeal as permitted by Texas Rule of
Appellate Procedure 26.3.
This Court's appellate jurisdiction in a criminal case is invoked by a timely filed
notice of appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a
timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address the
merits of the appeal in a criminal case and can take no action other than to dismiss the
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Because the thirtieth day fell on a Sunday, appellant had until the following Monday, November 25, 2013
to file the notice of appeal. See TEX. R. APP. P. 4.1.
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appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998). 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) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240
(Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
6th day of February, 2013.
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