Gilbert Alexander Perez v. State ( 2008 )

NO. 07-08-0124-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 16, 2008
______________________________
GILBERT ALEXANDER PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 18847-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Following a plea of not guilty, Appellant, Gilbert Alexander Perez, was convicted by
a jury of possession of a controlled substance. On February 5, 2008, a sentence of two
years confinement in a state jail facility and a $5,000 fine was imposed. No motion for new
trial was filed and Appellant’s notice of appeal was filed on March 19, 2008. We dismiss
for want of jurisdiction.
A notice of appeal is due to be filed with the trial court clerk within thirty days after
the day sentence is imposed. See Tex. R. App. P. 26.2(a)(1). The deadline may be
extended if, within fifteen days, the party files the notice in the trial court and a motion in
this Court complying with Rule 10.5(b)(2) of the Texas Rules of Appellate Procedure. See
Tex. R. App. P. 26.3. When a notice of appeal and a motion for extension of time are filed
within the fifteen-day window, the motion must provide a reasonable explanation for the
delay. See Tex. R. App. P. 10.5(b)(1)(C). A reasonable explanation is “any plausible
statement of circumstances indicating that failure to file within the [required] period was not
deliberate or intentional, but was the result of inadvertence, mistake or mischance.” See
Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977). See also Garcia v. Kastner
Farms, Inc., 774 S.W.2d 668, 669-70 (Tex. 1989).
Appellant’s sentence was imposed on February 5, 2008. No motion for new trial
having been filed, the deadline in which to file the notice of appeal was March 6, 2008, or
applying the fifteen day extension, March 21, 2008, if a motion reasonably explaining the
reason for the delay accompanied the notice. On March 19, 2008, Appellant filed his
notice of appeal in the trial court and a Motion for Extension of Time to File Notice of
Appeal in this Court. By the motion, however, Appellant’s counsel did not offer any
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explanation at all for the untimely filed notice of appeal. He merely provided relevant dates
and expressed Appellant’s desire to appeal his conviction.
By letter dated April 7, 2008, counsel for Appellant was notified of the defect and
directed to provide a reasonable explanation for the need for an extension of time no later
than April 18, 2008, noting that failure to comply might result in dismissal.1 In response,
on April 11, 2008, Appellant filed his First Amended Motion for Extension of Time to File
Notice of Appeal. The facts relied on for the extension are:
(1) [t]he Appellant’s appointed trial counsel did not perfect an appeal of the
Appellant’s cause within thirty (30) days although it was the Appellant’s
stated desire to appeal the trial and judgment in this cause as personally
stated to the undersigned counsel during an interview of March 19, 2008;
further
(2) [w]ithout an extension of time given to the Appellant under Rules
10.5(b)(2) and 26.3, Texas Rules of Appellate Procedure, the Appellant will
be denied his right to both legally review and contest the trial proceedings
which sentenced him to the maximum term of confinement, i.e., two (2)
years, in a State Jail Facility.
By the amended motion, Appellant’s counsel has not provided a plausible statement
indicating that failure to timely file the notice of appeal was not deliberate or intentional, but
was the result of inadvertence, mistake, or mischance. Without such explanation, we are
without jurisdiction to dispose of the appeal in any manner other than by dismissal for want
of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996). See also
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Rule 44.3 of the Texas Rules of Appellate Procedure requires a reasonable time
to correct or amend formal defects or irregularities in appellate procedure before dismissing
an appeal.
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Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App. 1998). Additionally, we do not
have authority to invoke Rule 2 of the Texas Rules of Appellate Procedure in an effort to
obtain jurisdiction of the case. We cannot create jurisdiction where none exists. Slaton,
981 S.W.2d at 210.
Consequently, the appeal is dismissed for want of jurisdiction.2
Per Curiam
Do not publish.
2
Appellant may have recourse by filing a post-conviction writ of habeas corpus
returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time
appeal. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2007)
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