Henry Taylor v. State ( 2010 )

NUMBER 13-09-00659-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

______________________________________________________________

HENRY TAYLOR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

_____________________________________________________________

On appeal from the 94th District Court

of Nueces County, Texas.

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MEMORANDUM OPINION Before Chief Justice Valdez and Justices Yañez and Vela

Memorandum Opinion Per Curiam

Appellant, Henry Taylor, attempted to perfect an appeal from a conviction for tampering with or fabricating physical evidence. We dismiss the appeal for want of jurisdiction.

Sentence in this matter was imposed on September 15, 2009. No motion for new trial was filed. Notice of appeal was filed on November 6, 2009. On December 9, 2009, 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 responded to this notice indicating that he has filed an application for writ of habeas corpus for purposes of pursuing an out of time appeal.

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). 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. Although the notice of appeal herein was filed within the 15-day time period for filing a motion for extension of time to file notice of appeal, no such motion for extension of time was filed. See id.

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). "When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction." Olivo, 918 S.W.2d at 522. Absent a timely filed 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 appeal for want of jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 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 DISMISSED FOR WANT OF JURISDICTION. PER CURIAM

Do not publish.

Tex. R. App. P. 47.2(b).

Delivered and filed

the 11th day of February, 2010.