Herbert Hern v. State ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
No. 08-19-00228-CR
HERBERT HERN, §
Appeal from the
Appellant, §
41st District Court
v. §
of El Paso County, Texas
THE STATE OF TEXAS, §
(TC# 20120D04271)
Appellee. §
MEMORANDUM OPINION
Herbert Hern, pro se, is attempting to appeal the trial court’s decision not to grant him an
out-of-time appeal.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State,
918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In a criminal case, a defendant’s notice of appeal is
due within thirty days after the day sentence is imposed in open court, or ninety days after the
sentence is imposed in open court if the defendant timely files a motion for new trial. See
TEX.R.APP.P. 26.2(a)(1), (2). While a court of appeals may extend the time to file the notice of
appeal, both the notice of appeal and the extension motion must be filed within fifteen days after
the deadline for filing the notice of appeal. See TEX.R.APP.P. 26.3. In the absence of a timely
filed notice of appeal, a court of appeals does not have 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. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).
In this instance, Hern did not attach a copy of the order he sought to challenge on appeal.
However, he did identify his conviction as occurring on March 20, 2014. The docketing statement
from the District Clerk states he was convicted on one count of aggravated sexual assault of a
child, a felony and Appellant was sentence in open court on March 6, 2014.
As Hern recognizes, this Court does not have jurisdiction to entertain a direct appeal from
his conviction at this point in time. As for his request for an out-of-time appeal, only the Court of
Criminal Appeals has jurisdiction to grant Appellant an out-of-time appeal of his felony
convictions. See Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex.Crim.App. 1991)
(explaining that writ of habeas corpus pursuant to Article 11.07 of the Texas Code of Criminal
Procedure governs out-of-time appeals from felony convictions).
Accordingly, we dismiss this appeal for lack of jurisdiction. All outstanding motions are
denied as moot.
September 27, 2019
YVONNE T. RODRIGUEZ, Justice
Before Rodriguez, J., Palafox, J., and Barajas, Senior Judge
Barajas, Senior Judge (Sitting by Assignment)
(Do Not Publish)
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