James William Rusaw Jr. v. the State of Texas ( 2021 )

NUMBER 13-21-00295-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
____________________________________________________________
JAMES WILLIAM RUSAW JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 36th District Court
of Aransas County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Justice Silva
Appellant filed a notice of appeal attempting to appeal convictions of both assault
family violence-impeding breath and aggravated assault causing serious bodily injury
entered by the 36th District Court of Aransas County, Texas on July 28, 2021. We dismiss
the appeal for want of jurisdiction.
Sentence in this matter was imposed with a judgment of conviction entered on July
28, 2021. On September 9, 2021, a notice of appeal was filed. On September 15, 2021,
the Clerk of the Court notified appellant that it appeared the appeal was not timely
perfected. Appellant was advised the appeal would be dismissed if the defect was not
corrected within ten days from the date of receipt of the Court’s directive.
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.
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 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.
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PROC. ANN. art. 11.07, § 3(a); see also Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App.
1999).
Additionally, the trial court has certified that this “is a plea-bargain case, and the
defendant has NO right of appeal” without permission of the Court. See TEX. R. APP. P.
25.2(a)(2).
The Texas Rules of Appellate Procedure provide that an appeal must be dismissed
if the trial court’s certification does not show that the defendant has the right of appeal.
TEX. R. APP. P. 25.2(d); see TEX. R. APP. P. 37.1, 44.3, 44.4. Accordingly, this appeal is
dismissed for want of jurisdiction.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
28th day of October, 2021.
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