Julian Silvas v. the State of Texas ( 2022 )

NUMBER 13-22-00419-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JULIAN SILVAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Silva
Memorandum Opinion by Justice Longoria
Appellant Julian Silvas attempts to appeal a conviction for stalking. See TEX. PENAL
CODE ANN. § 42.072(b). On February 4, 2022, the trial court placed appellant on
community supervision, and on April 7, 2022, the trial court revoked appellant’s
community supervision. Appellant filed a pro se notice of appeal on September 14, 2022.
On September 15, 2022, the Clerk of this Court notified appellant that it appeared that the
appeal had not been not timely perfected and advised appellant 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. See TEX. R. APP. P. 37.1. In response, appellant’s appointed counsel
filed an unopposed motion for extension of time to attempt to correct this defect until
October 10, 2022. This Court granted appellant’s motion for extension of time. Appellant’s
counsel has now filed a pleading in which counsel concedes that the notice of appeal was
not timely filed. 1
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). In a criminal
case, the defendant must file a notice of appeal 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. See id. R. 26.2(a)(1). If the defendant timely files a motion for new trial,
the notice of appeal must be filed within ninety days after the day sentence is imposed or
1 Appellant’s appointed counsel provided the Court with a pleading titled as an “Anders” brief which
addressed the timeliness of the appeal. See Anders v. California, 386 U.S. 738, 744 (1967); In re Schulman,
252 S.W.3d 403, 404, 406 (Tex. Crim. App. 2008) (orig. proceeding). Appellant’s appointed counsel has
also filed a motion to withdraw as counsel for appellant. As an Anders brief, counsel’s pleading was
defective in several respects; however, we need not address this issue further given our conclusion
regarding the untimeliness of the notice of appeal. Given our conclusion here, we dismiss the motion to
withdraw as moot.
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suspended in open court. See id. R. 26.2(a)(2). The defendant may obtain an extension
of time to file the notice of appeal if, within fifteen days after the deadline for filing the
notice of appeal, the defendant files the notice of appeal in the trial court and files a motion
complying with the Texas Rules of Appellate Procedure in the appellate court. See id. R.
26.3; see also id. R. 10.5. Thus, a late notice of appeal may be considered timely 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
Olivo, 918 S.W.3d at 522.
Here, the trial court revoked appellant’s community supervision on April 7, 2022.
Appellant did not file a motion for new trial, and thus the notice of appeal was due within
thirty days after the day sentence was imposed, or by May 9, 2022. See TEX. R. APP. P.
26.2(a)(1); see also id. R. 4.1(a) (extending periods of time that fall on a Saturday,
Sunday, or legal holiday). However, appellant’s notice of appeal was not filed until
September 14, 2022.
The Court, having examined and fully considered the documents on file and the
applicable law, is of the opinion that the notice of appeal was not timely filed, and we thus
lack jurisdiction over the appeal. See Slaton, 981 S.W.2d 208; Olivo, 918 S.W.2d at 522;
see also Ater v. Eighth Ct. of Apps., 802 S.W.2d 241, 242–43 (Tex. Crim. App. 1991)
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(orig. proceeding) (explaining that out-of-time appeals are governed by post-conviction
writs of habeas corpus). We dismiss this appeal for lack of jurisdiction.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
27th day of October, 2022.
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