Cory Shane Fields v. State ( 2015 )


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  • Opinion filed July 23, 2015
    In The
    Eleventh Court of Appeals
    ___________
    No. 11-15-00120-CR
    ___________
    CORY SHANE FIELDS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 350th District Court
    Taylor County, Texas
    Trial Court Cause No. 11208-D
    MEMORANDUM OPINION
    Cory Shane Fields, Appellant, has filed an untimely pro se notice of appeal
    from a conviction for aggravated sexual assault. We dismiss the appeal.
    The documents on file in this case indicate that Appellant’s sentence was
    imposed on January 23, 2015, and that his notice of appeal was filed in the district
    clerk’s office on May 26, 2015. When the appeal was filed in this court, we notified
    Appellant by letter that the notice of appeal appeared to be untimely and that the
    appeal may be dismissed. We requested that Appellant respond to our letter and
    show grounds to continue. The trial court subsequently appointed counsel to
    represent Appellant on appeal. Appellant’s court-appointed counsel has filed a
    response to this court’s letter.
    In the response, appellate counsel states that he has been informed by
    Appellant that Appellant verbally requested his trial counsel to file an appeal.
    Likewise, in his pro se notice of appeal, Appellant requests an out-of-time appeal
    and asserts that his retained trial counsel failed to file a notice of appeal as Appellant
    requested. Appellate counsel correctly acknowledges that “the proper avenue” to
    determine if Appellant is entitled to a direct appeal may “be by way of writ of habeas
    corpus.”
    Pursuant to TEX. R. APP. P. 26.2, a notice of appeal is due to be filed either
    (1) within thirty days after the date that sentence is imposed in open court or (2) if
    the defendant timely files a motion for new trial, within ninety days after the date
    that sentence is imposed in open court. A notice of appeal must be in writing and
    filed with the clerk of the trial court. TEX. R. APP. P. 25.2(c)(1); see also Shute v.
    State, 
    744 S.W.2d 96
    , 97 (Tex. Crim. App. 1988) (oral notice of appeal not
    sufficient). The documents on file in this court reflect that Appellant’s notice of
    appeal was filed with the clerk of the trial court 123 days after sentence was imposed.
    The notice of appeal was, therefore, untimely.
    Absent a timely filed notice of appeal or the granting of a timely motion for
    extension of time, we do not have jurisdiction to entertain this appeal. Slaton v.
    State, 
    981 S.W.2d 208
    (Tex. Crim. App. 1998); Olivo v. State, 
    918 S.W.2d 519
    (Tex.
    Crim. App. 1996); Rodarte v. State, 
    860 S.W.2d 108
    (Tex. Crim. App. 1993).
    Neither a notice of appeal nor a motion for extension were filed within the fifteen-
    day period permitted by TEX. R. APP. P. 26.3. This court, as an intermediate
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    appellate court, has no jurisdiction to grant an out-of-time appeal or to grant an
    untimely motion for extension; the Texas Court of Criminal Appeals is the only court
    with jurisdiction in final postconviction felony proceedings. 
    Olivo, 918 S.W.3d at 522
    –24, 525 n.8; Ater v. Eighth Court of Appeals, 
    802 S.W.2d 241
    , 243 (Tex. Crim.
    App. 1991).
    This appeal is dismissed for want of jurisdiction.
    PER CURIAM
    July 23, 2015
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Wright, C.J.,
    Willson, J., and Bailey, J.
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