Toribio Quintero v. State ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00073-CR
Toribio QUINTERO,
Appellant
v.
The STATE of Texas,
Appellee
From the 147th District Court, Travis County, Texas
Trial Court No. D-1-DC-12-200528
Honorable Bert Richardson, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: February 20, 2013
DISMISSED FOR LACK OF JURISDICTION
The trial court imposed sentence in the underlying cause on September 28, 2012.
Because appellant did not file a motion for new trial, the notice of appeal was due to be filed
October 29, 2012. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice
of appeal was due on November 13, 2012. TEX. R. APP. P. 26.3. Appellant filed a notice of
appeal and a motion for extension of time on December 12, 2012.
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be
04-13-00073-CR
considered timely so as to invoke a court of appeals’ jurisdiction if (1) it is filed within fifteen
days of the last day allowed for filing, (2) a motion for extension of time is filed in the court of
appeals within fifteen days of the last day allowed for filing the notice of appeal, and (3) the
court of appeals grants the motion for extension of time. See id.
Because the notice of appeal appeared to be untimely, this court issued an order directing
appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Our
order noted that appellant’s motion for extension of time referred to a statement contained in a
motion to withdraw filed by trial counsel stating appellant should be appointed new counsel on
appeal. We further noted that the motion did not contain a statement of appellant’s desire to
appeal. Finally, we noted that although the Texas Court of Criminal Appeals could consider the
language in trial counsel’s motion to withdraw in determining whether appellant may be entitled
to an out-of-time appeal, see Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App.
1991) (out-of-time appeal from final felony conviction may be sought by filing a writ of habeas
corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure), this court did not
construe the motion as a notice of appeal. See Roberts v. State, 270 S.W.3d 662, 665 (Tex.
App.—San Antonio 2008, no pet.); Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—San
Antonio 1996, no pet.).
In his response to our show cause order, appellant first argues that trial counsel’s motion
to withdraw could be construed as a notice of appeal. For the reasons previously mentioned in
our show cause order and noted above, we do not construe the motion as a notice of appeal. See
Roberts, 270 S.W.3d at 665, Rivera, 940 S.W.2d at 149. Appellant also argues that this court has
the authority to grant an out-of-time appeal, citing Jones v. State, 98 S.W.3d 700, 703–04 (Tex.
Crim. App. 2003). In Jones, the Texas Court of Criminal Appeals was considering an appeal
from an intermediate appellate court’s affirmance of a trial court’s order denying a habeas
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application. 98 S.W.3d at 702. Although the offense to which the habeas related appears to be a
felony sexual assault, the opinion does not address the basis for the intermediate appellate court’s
jurisdiction over the appeal. Nothing in the opinion, however, detracts from the Texas Court of
Criminal Appeals’ unequivocal statement in Ater that it is the only court with jurisdiction to
consider habeas relief in final post-conviction felony proceedings. 802 S.W.2d at 243; see also
TEX. CODE CRIM. PROC. art. 11.07. Accordingly, we lack jurisdiction to grant appellant an out-
of-time appeal. Because this court lacks jurisdiction to consider appellant’s untimely filed
appeal, we dismiss the appeal for lack of jurisdiction.
PER CURIAM
DO NOT PUBLISH
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