David Allen Schwab v. State ( 2018 )

NUMBER 13-18-00317-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
DAVID ALLEN SCHWAB, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 377th District Court
of Victoria County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
Appellant, David Allen Schwab, attempted to perfect an appeal from a conviction
for aggravated assault. We dismiss the appeal for want of jurisdiction.
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 have jurisdiction to address the
merits of the appeal and can take no action other than to dismiss the appeal for want of
jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
The trial court imposed sentence in this matter on December 8, 2017. Appellant
filed his notice of appeal on June 21, 2018. On June 21, 2018, the Clerk of this Court
notified appellant that it appeared that the appeal was not timely perfected 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. 1 Appellant requested and this Court granted an
extension to file a response until August 13, 2018. Appellant has not filed a response to
the Court’s directive.
Unless a motion for new trial has been timely filed, a notice of appeal must be filed
within thirty days after the day sentence is imposed or suspended in open court, or after
the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). Where a
timely motion for new trial has been filed, the notice of appeal must be filed within ninety
days after the day sentence is imposed or suspended in open court. See id. 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 id. 26.3.
1The trial court’s certification of the defendant’s right to appeal shows this is a plea bargain case
and the defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2).
2
Appellant’s notice of appeal, filed more than six months after sentence was
imposed, was untimely, and accordingly, we lack jurisdiction over the appeal. See
Slaton, 981 S.W.2d at 210. 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.); see
also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION. All pending motions
are likewise dismissed.
GINA M. BENAVIDES,
Justice
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
29th day of August, 2018.
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