Jose Luis Garcia v. State ( 2010 )

NUMBER 13-10-00580-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
JOSE LUIS GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 148th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion Per Curiam
Appellant, Jose Luis Garcia, attempted to perfect an appeal from a conviction for
aggravated assault. We dismiss the appeal for want of jurisdiction.
Sentence in this matter was imposed on September 3, 2010, a motion for new trial
was filed on October 8, 2010, and notice of appeal was filed on October 8, 2010. On
October 15, 2010, 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 this Court’s notice.
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.
According to Texas Rules of Appellate Procedure 21.4, appellant had thirty days
after the day sentence was imposed to file his motion for new trial. TEX. R. APP. P. 21.4.
Because the thirtieth day fell on Sunday, appellant had until the following Monday,
October 4, 2010 to file a motion for new trial. See TEX. R. APP. P. 4.1. The motion for
new trial was untimely because it was filed on October 8, 2010. Therefore, his notice of
appeal was due to have been filed within thirty days after the day sentence was imposed
or suspended in open court. See TEX. R. APP. P. 26.2(a)(2). Appellant did not file a
motion for extension of time to file his notice of appeal as permitted by Texas Rule of
Appellate Procedure 26.3 and did not file his notice of appeal until October 8, 2010.
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 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 the
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appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (TEX. CRIM. APP. P.
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) (Vernon 2005); see also Ex parte Garcia, 988 S.W.2d 240
(TEX. CRIM. APP. 1999).
The appeal is hereby DISMISSED FOR WANT OF JURISDICTION.
PER CURIAM
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of December, 2010.
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