Theodore Paul Gallia, Jr. v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00102-CR

Theodore Paul Gallia, Jr.,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2006-1701-C1

MEMORANDUM  Opinion

Theodore Paul Gallia, Jr., pro se, appeals from his plea-bargained felony conviction.[1] The Clerk warned Gallia that the Court might dismiss his appeal because his notice of appeal was not timely filed unless, within 21 days, a response was filed showing grounds for continuing the appeal.  The date sentence was imposed was December 14, 2009.  Gallia’s notice of appeal was filed on March 15, 2010 and was thus untimely.  See Tex. R. App. P. 26.2(a)(1) (providing that notice of appeal must be filed within 30 days after date sentence imposed or 30 days after entry of appealable order). 

Gallia’s response requests an out-of-time appeal.[2] We lack jurisdiction to grant an out-of-time appeal; that authority belongs exclusively to the Court of Criminal Appeals through a writ of habeas corpus.  See Parr v. State, 206 S.W.3d 143, 144-45 (Tex. App.—Waco 2006, no pet.). Because Gallia’s notice of appeal is untimely, we lack jurisdiction and dismiss his appeal.[3]

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal dismissed

Opinion delivered and filed April 21, 2010

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[CR25]

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[1] The record contains a waiver of appeal, and the certification of defendant’s right of appeal states that Gallia’s case is a plea-bargain case, that he has no right of appeal, and that he has waived the right of appeal.

[2] Gallia’s response asserts that he was not informed of his right to appeal, that a deputy instructed him to sign a waiver without his attorney present, and that his attorney failed to request an appeal.  Because we lack jurisdiction, we cannot address these allegations.

[3] Remaining pending are Gallia’s two other proceedings:  10-09-00372-CR and 10-09-00373-CR.

>        Failure or refusal to attend the mediation as scheduled and to actively participate therein may result in the imposition of sanctions, as permitted by law. 

        Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived.

        We abate the appeal and original proceedings for mediation.

PER CURIAM

Before Chief Justice Gray,

        Justice Reyna, and

        Justice Davis

Order issued and filed February 11, 2009

Appeal and original proceedings abated for mediation

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