Josea Juan Cantu AKA Leopoldo Aguado-Guel v. State ( 2008 )

Opinion issued February 14, 2008  

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00855-CR

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JOSEA JUAN CANTU, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 666123

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MEMORANDUM OPINION

On August 18, 1993, Josea Juan Cantu, ⁽¹⁾ with an agreed recommendation as to punishment with the State, pleaded guilty to the felony offense of unauthorized use of a motor vehicle. The trial court found Cantu guilty, suspended sentence, and placed appellant on community supervision for four years, and assessed a fine of $500.

The State subsequently filed a motion to revoke probation to which appellant pleaded true. Contemporaneously with his plea of true, the prosecutor, Cantu, and Cantu's counsel signed a document styled stipulation of evidence. The stipulations included a judicial confession, a waiver of constitutional rights and among others, the following statements:

I am the same Jose Juan Cantu who on the date September 8, 1993, in Harris County, Texas was convicted of the felony of unauthorized use of a motor vehicle in the 339th District Court of Harris County, Texas, and was granted adult probation for a period of five years... I judicially confess that it is true that I violated the terms and conditions of my probation as stated in...the State's motion.

After a hearing, the trial court found true the State's allegations that Cantu had violated the conditions of his community supervision by failing to avoid injurious and vicious habits, and found Cantu guilty of the original charge of unauthorized use of a motor vehicle. The trial court sentenced Cantu to confinement for four years on June 15, 1995.

The trial court's judgment became final on July 17, 1995 because the thirtieth day following the judgment fell on a weekend. See Tex. R. App. P. 4.1(a). No motion for new trial, motion in arrest of judgment, or notice of appeal was timely filed. See Tex. R. App. P. 21.4(a), 22.3, 26.2(a).

On August 10, 2007, Leopoldo Aguado-Guel, who claims to also be known as Josea Juan Cantu, filed in the 339th District Court a pro se document that requested the trial court to vacate his conviction and sentence in cause number 666123. The trial court denied the motion on August 22, 2007 without a hearing. On September 28, 2007, Aguado-Guel filed a notice of appeal in which he states that he appeals from the "judgment in this case that was entered on the 22nd day of August 2007." We construe Leopoldo Aguado-Guel's pro se August 10, 2007document as a motion for an out-of-time appeal.

Neither the trial court nor this Court has authority to grant an out-of-time appeal. The exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to article 11.07 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. Art. 11.07 (Vernon Supp. 2007); See Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).

Accordingly, we dismiss the appeal for lack of jurisdiction.

PER CURIAM

Panel consists of Chief Justice Radack, and Justices Jennings and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. The indictment, judgment, and sentence in trial court cause number 666123 name the defendant as Josea Juan Cantu.