Tommy Jewels Crossno v. State ( 2010 )

                                       NUMBER 13-09-00592-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

____________________________________________________________

TOMMY JEWELS CROSSNO, APPELLANT,

                                                             v.

THE STATE OF TEXAS,                                                            APPELLEE.

____________________________________________________________

                    On Appeal from the County Court at Law No. 3

                                       of Nueces County, Texas.

____________________________________________________________

                               MEMORANDUM OPINION

                        Before Justices Rodriguez, Benavides, and Vela

Memorandum Opinion Per Curiam

Appellant, Tommy Jewels Crossno, attempted to perfect an appeal from a conviction for assault.  We dismiss the appeal for want of jurisdiction.

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 filed notice of appeal, a court of appeals does not have jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal for want of jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). 

The trial court imposed sentence in this matter on October 31, 2008.  Appellant filed his notice of appeal on August 25, 2009.  On March 23, 2010, the Clerk of this Court notified appellant that it appeared that the appeal was not timely perfected and 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.  In response, appellant filed a motion to abate appeal and for remand to the trial court to allow appellant to file an out of time motion for new trial. 

Unless a motion for new trial has been timely filed, a notice of appeal must be filed within thirty days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order.  Tex. R. App. P. 26.2(a)(1).  Where a timely motion for new trial has been filed, the notice of appeal must be filed within ninety days after the day sentence is imposed or suspended in open court.  See id. 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 id. 26.3.

Appellant=s notice of appeal, filed more than nine months after sentence was imposed, was untimely, and accordingly, we lack jurisdiction over the appeal.  See Slaton, 981 S.W.2d at 210.  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).

Appellant’s motion to abate appeal and for remand to the trial court to allow appellant to file an out of time motion for new trial is DENIED.  The appeal is DISMISSED FOR WANT OF JURISDICTION.            

                                                                                                                                                                                                                                                            PER CURIAM

Do not publish.  See Tex. R. App. P. 47.2(b).

Delivered and filed the

28th day of October, 2010.