Damian Guerra Suarez v. State ( 2014 )

NUMBER 13-14-00236-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
DAMIAN GUERRA SUAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 332nd District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Perkes and Longoria
Memorandum Opinion Per Curiam
Sentence in this matter was imposed on November 16, 2012. Assuming a timely
motion for new trial was filed, appellant’s notice of appeal was due to be filed no later than
February 14, 2013. No notice of appeal was filed in the trial court; however, appellant
filed a motion for leave to file a late notice of appeal in this Court on April 23, 2014.
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.
On April 28, 2014, 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 filed a response to the Court’s directive.
Appellant did not file a notice of appeal within fifteen days of the last day allowed
for filing, and the motion for leave to file a late notice of appeal was not filed in this Court
within fifteen days of the last day allowed for filing the notice of appeal. Accordingly, this
Court does not have jurisdiction to grant appellant’s motion for leave to file a late notice
of appeal or to consider this appeal.
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
2
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 3d C.S. 2013); see also Ex parte
Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999).
The appeal is DISMISSED FOR WANT OF JURISDICTION. Appellant’s motion
for leave to file a late notice of appeal is DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
19th day of June, 2014.
3