Johnny Velasquez v. State ( 2015 )

NUMBER 13-15-00206-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
JOHNNY VELASQUEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 347th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion Per Curiam
Appellant, Johnny Velasquez, attempted to perfect an appeal from a conviction for
possession with intent to deliver cocaine. We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on December 4, 2014. No motion for new
trial was filed. Notice of appeal was filed on February 17, 2015. On May 4, 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
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).
Where a timely motion for new trial has been filed, notice of appeal shall be filed within
ninety days after the sentence is imposed or suspended in open court. TEX. R. APP. P.
26.2(a)(2). 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 January 5,
2015.1 See TEX. R. APP. P. 26.2(a)(2). Appellant did not file a motion for extension of
time to file his notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3
and did not file his notice of appeal until February 17, 2015.
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). 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.
1 Because the thirtieth day fell on a Saturday, appellant had until the following Monday, January 5,
2015 to file the notice of appeal. See TEX. R. APP. P. 4.1.
2
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.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of May, 2015.
3