Aaron Busbee v. State ( 2015 )

NUMBER 13-15-00154-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
AARON BUSBEE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 36th District Court
of San Patricio County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion Per Curiam
Appellant, Aaron Busbee, attempted to perfect an appeal from a conviction for
prohibited substance in a correctional facility. We dismiss the appeal for want of
jurisdiction.
Sentence in this matter was imposed on February 9, 2015. No motion for new
trial was filed. Notice of appeal was filed on March 23, 2015. On March 31, 2015, 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.1 Appellant
has not responded to this notice.
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). 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. Although the notice
of appeal herein was filed within the 15-day time period for filing a motion for extension
of time to file notice of appeal, no such motion for extension of time was filed. See id.
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). “When
a notice of appeal is filed within the fifteen-day period but no timely motion for extension
of time is filed, the appellate court lacks jurisdiction.” Olivo, 918 S.W.2d at 522. Absent
a timely filed notice of appeal, a court of appeals does not obtain jurisdiction to address
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The trial court’s certification of the defendant’s right to appeal shows that this is a plea-bargain
case and the defendant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2). On March 31, 2015, this
Court notified appellant’s counsel of the trial court’s certification and ordered counsel to: (1) review the
record; (2) determine whether appellant has a right to appeal; and (3) forward to this Court, by letter,
counsel’s findings as to whether appellant has a right to appeal, or, alternatively, advise this Court as to the
existence of any amended certification.
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the merits of the appeal in a criminal case 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).
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.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
25th day of June, 2015.
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