Frank Joe Ramirez v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00359-CR
FRANK JOE RAMIREZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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Frank Joe Ramirez filed a notice of appeal from his conviction for unlawful
possession of a firearm by a felon. Because appellant did not timely file his
notice of appeal, we must dismiss this appeal for want of jurisdiction.
In a criminal case, an appeal is perfected by the timely filing of a notice of
appeal. Tex. R. App. P. 25.2(b). To be timely, the notice of appeal must be filed
within thirty days after the day sentence is imposed or suspended in open court
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See Tex. R. App. P. 47.4.
or within ninety days if the defendant timely files a motion for new trial. Tex. R.
App. P. 26.2(a). In this case, the trial court imposed sentence on May 19, 2011.
Appellant filed a motion for new trial, but it was not timely: the motion was due
on June 20, 2011, and appellant filed his motion by hand delivery on July 1,
2011. Therefore, appellant’s notice of appeal was also due on June 20, 2011.
Appellant filed the notice on August 17, 2011.
On August 23, 2011, we notified appellant of our concern that we may lack
jurisdiction over the appeal because it was untimely filed, and we informed him
that his appeal was subject to dismissal unless he or any party desiring to
continue the appeal filed a response showing grounds for continuing the appeal.
See Tex. R. App. P. 44.3. Appellant’s counsel responded with a letter explaining
that he had assumed that the deadline to file a notice of appeal was ninety days,
not thirty days, because the trial court accepted the motion for new trial and there
was a hearing on that motion. This response does not show grounds for
continuing the appeal. See Mendez v. State, 914 S.W.2d 579, 580 (Tex. Crim.
App. 1996).
A timely notice of appeal is essential to vest this court with jurisdiction.
See Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996); see also
Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). The appropriate
vehicle for seeking an untimely appeal is by filing an application for writ of
habeas corpus under article 11.07 of the code of criminal procedure. Tex. Code
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Crim. Proc. Ann. art. 11.07 (West 2010); Ashorn v. State, 77 S.W.3d 405, 409
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (op. on reh’g).
Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R.
App. P. 43.2(f).
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 6, 2011
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