Daniel Trevino v. State ( 2015 )

NUMBER 13-15-00294-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
DAVID TREVINO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 319th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion Per Curiam
Appellant, David Trevino, attempted to perfect an appeal from a conviction for
evading arrest. See TEX. PEN. CODE ANN. § 38.04 (West, Westlaw through Ch. 46 2015
R.S.). Sentence was imposed in this cause on May 27, 2015. Appellant did not file a
motion for new trial and filed his notice of appeal on July 6, 2015. We dismiss the appeal
for want of jurisdiction.
On July 7, 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. Appellant did not correct the defect or file a response to this Court’s
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); see
Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App.1993); Lair v. State, 321 S.W.3d
158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). 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 TEX. R. APP. P. 26.3.
Appellant’s notice of appeal was due to have been filed on or before June 26,
2015. See id. R. 26.2(a)(1). Within the fifteen day time period, appellant filed his notice
of appeal but did not file a motion for extension of time.
In a civil case, a motion to extend the time for filing a notice of appeal is
“necessarily implied” when an appellant files a notice of appeal within the fifteen-day
grace period authorized by Rule 26.3. See Hernandez v. Nat'l Restoration Techs.,
L.L.C., 211 S.W.3d 309, 310 n.1 (Tex. 2006) (per curiam); Verburgt v. Dorner, 959 S.W.2d
615, 617–19 (Tex. 1997). In a criminal case, however, we do not infer a motion to extend
the time for filing a notice of appeal: “When a notice of appeal, but no motion for
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extension of time, is filed within the fifteen-day period, the court of appeals lacks
jurisdiction to dispose of the purported appeal in any manner other than by dismissing it
for lack of jurisdiction.” Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim .App.1996); see
Lair, 321 S.W.3d at 159; see also Ex parte Agostadero, 14-13-00975-CR, 2014 WL
1622772, at *1 (Tex. App.—Houston [14th Dist.] Apr. 22, 2014, pet. ref’d) (not designated
for publication).
Absent a timely filed notice of appeal, a court of appeals does not obtain jurisdiction
to address 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) (West, Westlaw through Ch. 46 2015 R.S.); 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
30th day of July, 2015.
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