Samuel Lujan v. State ( 2012 )

NO. 07-12-00151-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
AUGUST 20, 2012
SAMUEL LUJAN, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-435,583; HONORABLE JIM BOB DARNELL, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On December 15, 2006, appellant, Samuel Lujan, was convicted of the offense of
possession with intent to deliver a controlled substance, and sentenced to incarceration
in the Texas Department of Criminal Justice, Institutional Division, for a period of forty-
five years. On April 20, 2012, appellant filed his notice of appeal with the trial court. We
dismiss for want of jurisdiction.
To be timely, a notice of appeal must be filed within thirty days after sentence is
imposed or suspended in open court or within ninety days after that date if a motion for
new trial is timely filed. TEX. R. APP. P. 26.2(a). Therefore, appellant’s notice of appeal
was due on January 15, 2007. Because appellant’s notice of appeal was filed more
than five years after it was due, this Court is without jurisdiction over this appeal.1 See
Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). Because this Court is
without jurisdiction to address the merits of this appeal, we have no authority to take any
action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210
(Tex.Crim.App. 1998); Olivo, 918 S.W.2d at 523.
By letter dated July 5, 2012, this Court notified appellant that it appeared that his
notice of appeal was untimely filed and failed to invoke this Court’s jurisdiction, and
directed him to file a response with the Court by August 6, explaining how this Court has
jurisdiction over the appeal. To date, we have received no response from appellant.
As such, we now dismiss the purported appeal for want of jurisdiction.2
Mackey K. Hancock
Justice
Do not publish.
1
We are aware that the trial court entered an “Order Granting Out of Time
Appeal” in this cause. However, because appellant was convicted of a felony, the
conviction had become final, and appellant is in custody pursuant to that conviction, the
trial court did not have authority to grant appellant an out-of-time appeal. See Parr v.
State, 206 S.W.3d 143, 145 (Tex.App.—Waco 2006, no pet.).
2
Appellant may have recourse by filing a post-conviction writ of habeas corpus
returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time
appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2007); Parr, 206
S.W.3d at 145.
2