Lucas Constancio v. State ( 2012 )

NO. 07-12-00140-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 22, 2012
LUCAS BERMEA CONSTANCIO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B-18420-1005; HONORABLE EDWARD LEE SELF, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On November 1, 2010, appellant, Lucas Bermea Constancio, was convicted of
the offense of driving while intoxicated, and sentenced to incarceration in the Texas
Department of Criminal Justice, Institutional Division, for a period of fifteen years. On
April 12, 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 December 1, 2010. Because appellant’s notice of appeal was filed 499
days after it was due, this Court is without jurisdiction over this appeal. 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 April 18, 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 May 18, explaining how this Court has
jurisdiction over the appeal.1 In response, appellant filed a document entitled “Grounds
for Notice of Appeal,” which evinces that appellant’s response intends to challenge the
merits of his conviction rather than address this Court’s jurisdiction over this appeal.
As such, we now dismiss the purported appeal for want of jurisdiction.2
Mackey K. Hancock
Justice
Do not publish.
1
This correspondence further notified appellant that the trial court’s certification
of defendant’s right of appeal indicates that this case is a plea-bargained case and
appellant has no right of appeal. We notified appellant that the appeal is subject to
dismissal based on this certification unless the Court receives an amended certification
providing that appellant has the right of appeal or other grounds for continuing the
appeal. See TEX. R. APP. P. 25.2. We have received no amended certification of
defendant’s right of appeal.
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).
2