Timothy Demarre'a Lewis v. State ( 2016 )

Opinion issued August 16, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00177-CR
NO. 01-16-00178-CR
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TIMOTHY DEMARRE’A LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case Nos. 1304258 & 14411901
MEMORANDUM OPINION
Appellant, Timothy Demarre’a Lewis, pleaded guilty to the first-degree
felony offense of aggravated robbery—over sixty-five years old or disabled, without
1
Appellate cause no. 01-16-00177-CR; trial court cause no. 1304258.
Appellate cause no. 01-16-00178-CR; trial court cause no. 1441190.
an agreed punishment recommendation in the underlying trial court cause number
1304258.2 The trial court deferred adjudicating appellant’s guilt and placed him on
community supervision for a period of four years in 2011.3
The State subsequently moved to adjudicate appellant’s guilt in 2014,
alleging that he had violated the conditions of his community supervision by, among
other things, committing a new crime, the first-degree felony offense of aggravated
robbery—deadly weapon, charged in the second underlying trial court cause number
1441190.4 Appellant pleaded true to this allegation and, without an agreed
punishment recommendation, pleaded guilty to this new offense.
On May 28, 2015, the trial court found the alleged violation of appellant’s
community supervision true, adjudicated his guilt in trial court cause number
1304258, and assessed his punishment at twenty-five years’ confinement. On the
same day, trial court cause number 1441190, the trial court also found appellant
guilty and assessed his punishment at twenty-five years’ confinement, with the
sentences to be served concurrently.
The trial court certified that these were not plea-bargain cases and that
appellant has a right of appeal. Appellant did not file a notice of appeal in each case
2
See TEX. PENAL CODE ANN. § 29.03(a)(3)(A), (b) (West Supp. 2015).
3
See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2015).
4
See TEX. PENAL CODE ANN. § 29.03(a)(2), (b); see TEX. CODE CRIM. PROC. ANN.
art. 42.12 §§ 5(b), 21(e).
2
until February 15, 2016. And on that date, the trial court granted counsel’s motion
to withdraw but did not appoint new counsel. We dismiss the appeals for want of
jurisdiction.
A criminal defendant’s notice of appeal must be filed within thirty days after
the sentence is imposed or suspended in open court, or after the day the trial court
enters an appealable order, if the defendant has not filed a motion for new trial.
See TEX. R. APP. P. 26.2(a)(1). An appellant may obtain an extension by filing the
notice of appeal in the trial court and a motion for extension of time in the appellate
court within fifteen days after the deadline passes. See id. 26.3.
A notice of appeal that complies with the requirements of rule 26 is essential
to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208,
210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim.
App. 1996). If an appeal is not timely perfected, a court of appeals does not obtain
jurisdiction to address the merits of the appeal. See Slaton, 981 S.W.2d at 210.
Here, the trial court signed both judgments on May 28, 2015, and imposed the
sentences on that date. Appellant did not timely file a motion for new trial or
extension of time to file a notice of appeal, making his notices of appeal due by June
29, 2015. See TEX. R. APP. P. 4.1(a), 26.2(a)(1), 26.3. Appellant’s notices of appeal
were not filed until February 15, 2016, more than eight months after the judgments
were signed. See id. 26.2(a)(1). Thus, under these circumstances, we can take no
3
action other than to dismiss these appeals for want of jurisdiction. See Slaton, 981
S.W.2d at 210; Olivo, 918 S.W.2d at 526.
Conclusion
Accordingly, we dismiss these appeals for want of jurisdiction. See TEX. R.
APP. P. 43.2(f). We dismiss any pending motions as moot.5
PER CURIAM
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
5
However, we note that appellant is not without a remedy and may file a writ of
habeas corpus in the trial court, made returnable to the Texas Court of Criminal
Appeals, seeking leave to file an out–of–time appeal. See, e.g., Ex parte Parodi,
PD-1740-11, 2012 WL 669981, at *1 (Tex. Crim. App. Feb. 29, 2012) (not
designated for publication) (noting “Article 11.07 writ practice of granting an out–
of–time appeal when either the appellate attorney fails to properly file a notice of
appeal or when there is a breakdown in the system that prevents the filing of a proper
notice of appeal.”) (internal quotation marks and citations omitted).
4