Paul Michael Lopez v. State ( 2013 )

NUMBER 13-13-00538-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
PAUL MICHAEL LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 370th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion Per Curiam
Appellant, Paul Michael Lopez, attempted to perfect an appeal from a conviction
for possession of child pornography. We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on July 3, 2013, counsel filed a motion for
new trial on June 25, 2013, and notice of appeal was filed on September 25, 2013. On
October 7, 2013, the Clerk of this Court notified appellant that it appeared that the appeal
was not timely perfected and 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 filed a response to the Court’s directive.
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 timely filed a motion for new trial. Therefore, his notice of appeal was
due to have been filed on or before September 3, 20131. See TEX. R. APP. P. 26.2(a)(2).
Although the notice of appeal herein was filed within the fifteen day time period, no such
motion for extension of time was filed within the fifteen day time period. See id.
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.
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The ninety day after June 3, 2013, fell on Sunday, September 1, 2013. The following day was Monday,
September 2, 2013, which was Labor Day. As per TEX. R. APP. P. 4.1(a), the deadline for filing the notice of
appeal was extended to Tuesday, September 3, 2013.
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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
5th day of December, 2013.
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