Michael Dante Garrett v. State ( 2019 )

DISMISS; and Opinion Filed August 16, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00949-CR
MICHAEL DANTE GARRETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F92-39878-WV
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Osborne
Michael Dante Garrett appeals his conviction for aggravated robbery with a deadly
weapon. After finding appellant guilty, the jury assessed punishment at 99 years in prison and a
$10,000 fine. On February 26, 2019 appellant filed a “Notice of Out of Time Appeal for Illegal
Sentence” that was forwarded to and filed in this Court on August 12, 2019.
The appropriate vehicle for seeking an out-of-time appeal is by writ of habeas corpus from
the Texas Court of Criminal Appeals filed under article 11.07 of the code of criminal procedure.
See TEX. CODE CRIM. PROC. ANN. art. 11.07; see Ater v. Eighth Court of Appeals, 802 S.W.2d 241
(Tex. Crim. App. 1991) (explaining that writ of habeas corpus pursuant to article 11.07 of the
Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions). This
Court has no jurisdiction to grant out-of-time appeals.
To the extent we were to construe his motion as a notice of appeal, we note that a timely
filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v. State, 369 S.W.3d
196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of appeal, we have no
option other than to dismiss the appeal. Id. A defendant perfects an appeal by filing with the trial
court clerk, within thirty days after the date sentence was imposed, or within ninety days after
sentencing if the defendant timely filed a motion for new trial, a written notice of appeal showing
his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a).
Appellant was convicted on July 20, 1994; absent a timely filed motion for new trial, his
notice of appeal was due no later than August 19, 1994. However, this document was filed with
the district clerk on February 26, 2019, depriving us of jurisdiction.
Because we lack jurisdiction, we dismiss this appeal.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190949F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MICHAEL DANTE GARRETT, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-19-00949-CR V. Trial Court Cause No. F92-39878-WV.
Opinion delivered by Justice Osborne,
THE STATE OF TEXAS, Appellee Justices Schenck and Reichek participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want of
jurisdiction.
Judgment entered this 16th day of August, 2019.
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